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The 2013 Bainimarama/Khaiyum Constitution: the darkness and the light

September 3, 2013

By Professor Wadan Narsey 

The Bainimarama Regime has now released its 2013 Constitution for Fiji (2013 BKC).

While many political scientists will compare it to the aborted Ghai Draft Constitution, the more appropriate comparison should be with the 1997 Constitution, which this regime claims to have abrogated.

[Recollect the 2001 judgement by Justice Anthony Gates (current Chief Justice) that constitutions cannot be so abrogated, and recollect  the 2009 Court of Appeal judgement that the Bainimarama Regime was unlawful (and so presumably is in no lawful position to hand down any constitution to us, except by force)?]

But Fiji will, as always, be pragmatic and not let a little legal nicety get in the way of getting on with our lives and putting bread on the table. (Some, of course, want the cake and the icing as well).

The 2013 BKC states many good governance principles for the state executive, the legislature and the judiciary, many of which unfortunately this unelected Regime has never applied to itself, these last seven years.

Unfortunately also for the long run, the good elements are negated by fatal weaknesses in the process of the making of this constitution, allegedly unchallengeable clauses on total immunity, the absence of any requirement to make past decrees consistent with the 2013 BKC, the removal of even any symbolic attempt to discourage future coups, and lack of respect for the UN Declaration on the rights of Indigenous Peoples.

Readers may wish to browse through my January 2013 article where I suggested (somewhat correctly in hindsight) that the Bainimarama regime’s real priorities would be revealed by examining where their eventual constitution differed from the Yash Ghai Commission Draft

It is sad that Fiji will painfully waste many more “nation years” in the future, revising the 2013 BKC to remove its weaknesses (Part I of this article).

Nevertheless, the 2013 BKC presents a flickering glimmer of light at the end of the tunnel with its electoral system, which may result in an elected parliament and government by September 2014, if the military referees think of the nation instead of their pockets (Part II of this article).

Source – Coupfourpointfive; Posted by Rusi Varani for SWM


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