Fiji – A year on from the April 2009 Constitutional Crisis

Fiji – A year on from the April 2009 Constitutional Crisis

London – 16th February 2010

Speech by Rev Akuila Yabaki, CEO
At Methodist Church House, London
Citizens’ Constitutional Forum (CCF)  Suva, Fiji


On 5 December 2006, the soldiers of the Republic of Fiji Military Forces (RFMF) took over Fiji through military checkpoints at strategic locations in Suva, as well as the airports and other key parts of the country. A senate session in progress was stopped and government ministers who had gone into hiding a few days earlier were informed through the media of the takeover.

Head of the RFMF Commodore Voreqe Bainimarama appointed himself President and appointed a caretaker Prime Minister. On 5 January 2007, Bainimarama returned executive authority to Ratu Josefa Iloilo by returning the Presidency to him. Iloilo swore in Bainimarama as the Interim Prime Minister and some prominent chiefs, politicians and personalities were appointed to key ministerial portfolios. A semblance of government was maintained whereby the regime purported to uphold the 1997 Constitution and claimed their takeover was constitutional.

In October 2008, the High Court ruled in favour of the Bainimarama administration in the case of Qarase v Bainimarama. The Appeals Court in April 2009 overturned this ruling and declared that the President, under the 1997 Constitution did not have the powers to dissolve Parliament and appoint the interim Bainimarama government. It ruled that the President could only make those decisions on the advise of the Prime Minister and the cabinet. Following this judgment, Bainimarama resigned from the position of Prime Minister. A day later, the President purported to abrogate Fiji’s 1997 Constitution and reappointed Bainimarama and the Attorney General back to their positions. Decrees were promulgated creating a new legal and political order. The decrees in particular, placed limitations on the powers of the courts and entrenched decision-making powers in the Executive’s hands.

The decrees have created a legal quagmire in Fiji, as many of them violate human rights and good governance principles.

Legal Implications

Many legal uncertainties were created by the purported abrogation of the Constitution and the subsequent dismissal of judges and magistrates. Key institutions such as the Elections Office, the Fiji Human Rights Commission, and the Ombudsman, ceased to exist as these had been established under the Constitution. The Bill of Rights in the 1997 Constitution, which enshrined about 18 rights and freedoms from the Universal Declaration of Human Rights, also ceased to exist. The result is lack of adequate legal protection for human rights. Decrees created to replace institutional mechanisms that were disbanded through the 1997 Constitution, tend to be selective on which portions of the laws are retained. An example of this is the Fiji Human Rights Commission whose mandate is now severely restricted to education and receiving complaints, under the new decree. The decrees in particular, limit the Courts and the Fiji Human Rights Commission from participating in or hearing any cases relating to the Constitution or relating to any appointments, laws or major administrative decisions made by the Interim Government.

There are increasing concerns on the independence of the judiciary. This new year saw the sacking of three magistrates within days of making comments in the court that were not conducive to the interim government’s institutions. The concern about the deterioration of the rule of law in Fiji is reflected in a statement by Dobbins from the UN Department of Peacekeeping Operations who said that:-

“Without a widely shared commitment to the idea of the rule of law, courts are just buildings, judges are just public employees and constitutions just pieces of paper.”

Militarization is now affecting the law enforcement agencies and is compromising the perceived independence of institutions. The Fiji Police Force, the Office of the Director of Public Prosecutions and the judiciary now all have military officers in key positions.

Decrees are passed in secret by Cabinet and assented to by the President. Often, Decrees are not publicly available either through the Government Gazette or on the Fiji Government Website, for weeks at a time. This does not follow practices of good governance which require transparency, accountability, responsiveness, and participation.

Challenges faced by CCF include:- How do we safeguard human rights and Constitutional processes in the present environment?

The rules keep on changing towards shutting out opposition and dissent. An example of this is the Regulation of Pensions and Retirement Allowances Decree 2009 which provides for the termination of pensions for ex-parliamentarians, Prime Ministers, Judicial officers and higher public servants who make, or who have made any comments against government. A second example is the Crimes Decree 2009 which reduces the penalties for treason, if a person can justify that their treasonous action was necessary or done in “good faith” to correct a dangerous problem or situation in Fiji. This dramatically changes the definition of treasonous conduct, as understood in international law.

Legitimacy of Legislation

In a democracy, the legitimate process for creation of legislations is through a Parliament which normally has two houses. The lower house has government ministers and the backbenchers and parliamentarians from opposition political parties. Parliamentary mechanisms ensure that a draft Bill becomes known to the public when it is read in Parliament and reported in the media. The public get a chance to comment on the Bill in the media, and have discussions and debate on its provisions, in their work and through civil society organisations. Opposition members ensure the public’s interest is served in Parliament through vigorous scrutiny of the Bill for loopholes and problematic provisions.

Contentious questioning by Opposition members and the public ensure that Bills which are not ready to be accepted by the public, are referred to Committees which can be tasked to take submissions from the public and consult with a wide range of parliamentarians for necessary changes to the Bill. The Bill needs to be passed by both Houses in order to be enacted as a legitimate legislation. This ensures that no legislations are made without the consent of a wide section of society.

Currently in Fiji, a decree is created by employees of the Interim Government and is promulgated by the President. People hear about it when the government decides to inform them through the media, or when it becomes available on the website or gazette. There is no consultation or debate prior to, or after the creation of these decrees. The majority of the population are not aware of the large number of new decrees created, or on the content of these decrees. The legitimacy of these decrees, therefore, remains questionable.

No equivalent processes have been created to replace the parliamentary structures dismantled through the abrogation of the constitution. The new decrees have restricted decision-making to the Executive. In addition, new decrees such as the Crimes Decree 2009 have higher penalties for minor crimes and lower penalties for serious crimes such as justifiable acts of treason. The Crimes Decree, together with a decree to regulate pensions and a proposed media decree, have penalties which are designed to intimidate and penalise politicians, ordinary people, non-government organisations and the media, from criticising the government.

The Public Emergency Regulations and Media Censorship

Free expression in Fiji has been under intense pressure since the imposition of the Public Emergency Regulations (PER) on the day the 1997 Constitution was abrogated. The regulations are extended every thirty days even though the country does not have any situation of natural disaster, civil or political unrest or violence. This is a sharp departure from Fiji’s political tradition where contentious opposing views were freely expressed in the media. The censorship poses severe risks to the future of free expression in Fiji.

Government censors are sent in by the police to newspaper, radio and television companies every day. These censors order all news that are critical of the government to be deleted. The impact is that NGOs, politicians and ordinary citizens who are critical of the government, are now unable to get any of their media articles published. The CCF itself has been unable to get any of its Media Releases published since April 13 2009. Immediately after the abrogation, a number of journalists were arrested and detained by the police for writing articles that were critical of the government. In May 2009, two Fijilive journalists were arrested and detained for a weekend, after publishing a media release issued by CCF on the release on Compulsory Supervision Orders (CSOs), eight soldiers and one policeman who were serving sentences of over four years imprisonment for a manslaughter conviction. Prominent politicians, lawyers, church officials, union and NGO activists have been taken to the army camp and warned. This month, 15 Methodist church officials were charged with violating the PER. Several overseas journalists have been deported. The High Commissioners from Australia and New Zealand have been expelled and two former Fiji citizens have been forbidden to return to Fiji.

In addition, there was an attempt to evangelise the police force through the “Christian Crusade” that had adopted “the Jesus strategy” as the way to fight crime. Police officers were required to participate in the religious activities of the New Methodist Church founded by the brother of the Police Commissioner Esala Teleni. The New Methodist Church supported Bainimarama’s policies and actively recruited members through a demagogue style of preaching and song and dance entertainment. This religious activity was particularly discriminatory to the Indo-Fijian community in Fiji who largely belong to the Hindu and Muslim faiths, and the other religious minorities, as the police officers from these faith had to participate in the “Christian Crusade” or risk losing their jobs. The New Methodist Church also was seen as an attempt to decrease the population of Methodist church followers in Fiji. The largest proportion of Fijians are followers of the Methodist Church, and the church accumulated considerable political power under the Prime Ministerships of Sitiveni Rabuka and Laisenia Qarase spanning the two decades from 1987 to 2006. The Bainimarama regime has cracked down strongly on the Methodist Church due to the church’s strong ties with the ousted Prime Minister Qarase’s SDL political party. Religion had already been politicized prior to the December 2006 coup, however, the Bainimarama government’s actions have been intimidating for church members and therefore discriminatory and in violation of human rights.

Implication for Human Rights

The following human rights are curtailed due to media censorship under the PER:-

  • Article 18 – Freedom of Thought, Conscience and Religion,
  • Article 19 – Freedom of Opinion and Expression,
  • Article 20 – Right of Peaceful Assembly and Association,
  • Article 30 – Freedom from State or Personal Interference in the Above Rights

Good Governance Principles

The censorship effectively means that the following good governance principles cannot be achieved:-

  1. Accountable – the accountability of the government to the citizens and taxpayers cannot be achieved because the media is not free to inform people of the true state of government’s affairs. The media also cannot provide space for open discussion, debate and dialogue by credible people.
  2. Transparent – the need for the government to keep people informed of its key activities, policies and processes of making and implementing decisions cannot be achieved if there is no free media.
  3. Responsive – a government that suppresses its people cannot be in a position to be responsive to their needs, such a government will only be responsive to its own needs.
  4. Participatory – A restricted media prevents the full participation of citizens in the government’s decision-making process, as people are not able to relay freely their concerns on issues. It also means the government has failed to provide an enabling environment so that citizens can have confidence to express themselves.

The serious impact of censorship means that good governance principles cannot be achieved in an atmosphere of suppression, intimidation and censorship.

The importance of a free media cannot be emphasised enough. Today, much of Fiji’s public is aware of corruption and the need to keep the government in check, due to the media’s highlighting of major cases of corruption, such as the financial mismanagement in the National Bank of Fiji in 1996, which later led to the collapse of that bank, and the misuse of Agricultural funds by leading politicians in 2001. The current censorship prevents Fiji’s citizens from becoming aware of such mismanagement and prevents them from voicing their concerns or generating a case for prosecution. The worst impact of censorship is that the ordinary citizens of Fiji are being misinformed and misrepresented by the current government and they cannot hold the government to account.

Implications of the coup for Regional / International Politics

The December 2006 coup and the purported abrogation of Fiji’s 1997 Constitution has had serious implications for the South Pacific region, and for other developing countries in the world.

It is no sheer coincidence that the attempted civilian coup of May 19 2000 in Fiji triggered what has been referred to as a ‘copy-cat’ attempted coup with violence and looting on June 5 2000 in the Solomon Islands. Similarly, the simmering political tensions and threats of a coup by Commodore Bainimarama, may have some influence on the rioting and civil unrest that took place in Tonga in November 2006. Fiji is the leading nation in the South Pacific in terms of social and economic development. The bulk of the headquarters of key regional institutions are housed in Fiji. It is ironic therefore, that it is the only country in the region with a history of coup-culture and illegitimate governments. Although Papua New Guinea has problems of violent crimes and an armed force, this largest country in the region also never had a coup. The proportionately large size of the army in Fiji has been blamed for Fiji’s coup problems.

After the Bougainville crisis, the Biketawa Declaration was created by Pacific Islands Forum Secretariat, which set out procedures for good-intentioned intervention to resolve crisis in a country. The Biketawa declaration was successfully used by the Solomon Islands government when they requested for Australian assistance following the collapse of institutional structures after the 2000 uprising. Ousted PM Qarase unsuccessfully called on Australia and New Zealand to intervene, amidst public threats of a coup by Bainimarama in November 2006. Both countries had to decline as sending their troops had the potential for triggering a bloody conflict in Fiji.

In the aftermath of the 2006 coup, CCF called on international organisations to assist Fiji in returning to sustainable electoral democracy through the processes provided under the Cotonou Agreement of ACP (Asia, Caribbean and Pacific) countries and the Milbrook Declaration.

Provisions of the Milbrook Declaration were activated after the December 2006 coup, with the European Union and the ACP countries calling on the Bainimarama regime to provide a time-frame to have an election in Fiji by December 2008. Under the Milbrook Declaration, a country where the government has been removed through undemocratic means, must return to elected government within two years. The Fiji government had agreed to elections by early 2009. Things seemed on track, however, the abrogation of the Constitution on April 2009 and the subsequent announcement by Bainimarama that elections will now be held in 2014, has resulted in a collapse of the process provided by the Milbrook Declaration, for the situation of Fiji. The International Community are now sceptical of engaging with the Bainimarama government due to a perception that the regime is not genuine in implementing commitments. The Cotonou Agreement provides for ‘informal discussions’ which can be classified as similar to dialogue. So far, the Cotonou Agreement’s provisions for discussions aimed at resolving conflict and dialogue, have not been actively explored for Fiji.

The CCF, together with fellow local and international non-government organisations, have utilised the international mechanisms available to keep pressure alive on the Fiji government to return to electoral democracy. In February 2010, Fiji has been reviewed by the UN under the Universal Periodic Review (UPR), which now makes it compulsory for each UN member country to be reviewed every four years against the international UN Conventions and Declarations. I represented CCF at the UPR consultation in Geneva. CCF’s submission to the UPR is available on the CCF and OHCHR websites. We called on Fiji’s Interim Government to allow visits by the UN Special Rapporteurs against Torture, on the Independence of Judges and Lawyers, and on Human Rights Defenders. The interim government is failing to protect basic human rights through interference in personal freedoms, the government and judiciary of Fiji. We called on the Interim Government to have elections in Fiji at the earliest possible time. We called on the Government to ensure the independence of the judiciary in Fiji, and to ensure protection of the rights of Human Rights Defenders.

Dialogue & solutions for the future

There have been a few attempts since December 2006 to bring people together to try and address the past problems of political instability. The major one was the National Council for Building a Better Fiji (NCBBF), which was launched in October 2007. It brought together leaders to discuss moving the country forward through the creation of a Charter to address past conflict and provide potential solutions through Chapters such as “Ending the Coup Culture” and “The role of the Military”. The process resulted in a document called the People’s Charter for Change, Peace and Progress (PCCPP).

The key recommendations in the Charter, such as electoral reforms were major agenda items for discussion in the President’s Political Dialogue Forum (PPDF) which commenced in mid 2008 and brought together leaders of registered political parties.

The process started off promisingly through the Political Leaders Dialogue Process. In April 2009, four of the major political parties, including the ousted Soqosoqo ni Duavata ni Lewenivanua (SDL) party were excluded from participation in the third meeting of the Political Leaders Dialogue as they refused to sign a statement agreeing not speak to the media and committing to electoral reforms. The proposed facilitators, the United Nations and the Commonwealth Secretariat, could not continue without inclusivity. In any event, the abrogation of the 1997 Constitution resulted in a discontinuation of the PPDF process.

A track II dialogue process was established by mid-2009 (called Dialogue Fiji) parallel to the impending PPDF process, in order to ensure that civil society and the public could have a meaningful contribution. This process aimed to address both the political and social factors that contribute to political instability and recognises the importance of public consultation and support for politically agreed outcomes to be sustainable.

Both tiers suffered a major set back with the purported abrogation of the Constitution and the subsequent restrictions imposed through decrees and the PER. The interim government seems determined to push ahead with its own agenda regardless of whether or not they have popular or legal support. This begs the question of whether the PPDF was doomed to fail. Certainly, the exclusion of key political players indicates the unwillingness of the regime to tolerate opposition and accept inclusivity.

In an address to the nation on 1 July 2009, Commodore Bainimarama outlined his framework for the following five years. Within the speech there was no mention of any form of political dialogue up to September 2012, after which it was suggested there will be an inclusive constitutional development process.

Dialogue has the potential to be an important tool in addressing ethno-political conflict in Fiji, but it will only work if there is a genuine commitment from all levels of society to participate in the process.

In order for a dialogue process to have any meaningful impact, the interim government will need to participate willingly and in good faith. It is crucial that current restrictions (PER) which suppress freedom of expression, assembly and association be lifted, so that civil society can express their views in this forum without fear of reprisal.

The Melanesian Spearhead Group, the Pacific Islands Forum and the Commonwealth Secretariat have all offered their support for a dialogue process that leads to elections. Fiji’s two major political rivals, Qarase and Chaudhry (both former Prime Ministers), who were once unable to share seats in Cabinet together, are now working together to encourage the PPDF to get back on track. In conjunction with this, the Dialogue Fiji process is continuing with some degree of government support.

Without an ongoing commitment from all aspects of society to engage in an open, inclusive and fair dialogue process, including from the interim government and the military, the ethno-political conflict will prevail. With the right attitude, dialogue can bring people together and help reconcile Fiji with its past history of ethno-political conflict.

Leave a Reply

Your email address will not be published. Required fields are marked *