Constitutional Development and Issues in Fiji: A Critical Analysis

This report critically analyzes the constitutional development and related issues in Fiji, tracing its history from independence in 1970 to the adoption of the 2013 Constitution. It examines key constitutional crises, including the coups of 1977 and 1987, and the ethnic tensions that shaped the nation's political landscape. The analysis covers the formulation of various constitutions aimed at addressing ethnic representation and political stability, highlighting the impact of these developments on the rights and interests of the general public. The report further discusses the controversies surrounding the 2013 Constitution, including criticisms regarding immunity granted to government officials and its potential impact on the balance of power. This document is available on Desklib, a platform offering a wide range of academic resources for students.

Running head: CONSTITUTIONAL ISSUE AND DEVELOPMENT
Constitutional Issue and Development
Name of the Student
Name of the University
Author Note

1CONSTITUTIONAL ISSUE AND DEVELOPMENT
From the very beginning, making Constitution has been declared as an important way of
transition1. Over the years, states have undergone transformation from authoritarian regime to
democratic regime with an intention to give rise to a new democratic constitution. In this regard,
it is noteworthy to mention here that as a result of transition from an authoritarian regime to
democracy, it formulated a new social relationship between the governors and the governed2. It is
worth noting that in transitioning societies like Fiji, constitutional development can be complex
as various processes are associated with it in relation to different state actors consulting with
each other before reaching a final settlement. However, the measures adopted by the Constitution
of Fiji may vary with the principles of Constitution of other countries. This is because; most of
the countries modifies the constitution which exists while other countries repeal the existing
constitution and thereby initiates the drafting of a new body3. As a result of various processes
involved in democratization and amendments much emphasis is laid on the rights and interests of
general public.
Constitutional development in Fiji can be referred to as the making of constitution into
democracy. Modern scholars opined that the ideas involved in constitutional development are
based on the idea that democratic constitutions could only be adopted through the process of
democratization. Similarly, in case of constitutional issue arising out of internal and external
forces the process of democratization can be taken into account. In this regard, various authors
have shared their opinions regarding the development of political and social relationships
between different countries and communities in the process of constitutional development. It is
1 Jung, Courtney, Ran Hirschl, and Evan Rosevear. "Economic and social rights in national constitutions." The
American Journal of Comparative Law 62.4 (2014): 1043-1094.
2 Ardanaz, Martin, and Carlos Scartascini. "The economic effects of constitutions: do budget institutions make forms
of government more alike?." Constitutional Political Economy25.3 (2014): 301-329.
3 Chand Prasad, Biman. "Why Fiji is not the “Mauritius” of the Pacific? Lessons for small island nations in the
Pacific." International Journal of Social Economics 41.6 (2014): 467-481.

2CONSTITUTIONAL ISSUE AND DEVELOPMENT
worth mentioning that in spite of efficient constitutional development in Fiji, it faced various
constitutional crises from the beginning of 19774. Authors were of the view that the process
involved in constitutional development could address the existing constitutional issues5.
Therefore, the purpose of the essay is to critically analyze the process of constitutional
development and the related constitutional issues in Fiji.
In order to critically analyze the constitutional development and issue it is important to
emphasize on the constitutional history in Fiji. After its independence from Britain in 1970, the
constitution of Fiji was scattered with periods in relation to the interim rule of the government
and the military6. However, the Constitution which came into operation in 1970 negotiated the
terms with the British. Scholars were of the view that the Constitution of Fiji was formed
resulting from the process of decolonization undertaken by the British Constitution for the
purpose of making independent colonies. In the beginning of 1960, he people of Fiji had greater
roles in the administrative system7. However, after the constitutional conference which was held
in 1965 in London, created a right on the people of Fiji to take control of the government
activities of their own. In this regard, the deed of cessation came into effect, which guaranteed
rights related to land for the purpose of constitutional protection in Fiji. However, there existed
inequality in the voting system. Voters were recognized according to the ethnic groups in which
they belonged. However, the Constitution vested powers on the politicians in Fiji as long as they
maintained active partnership with the general voters. Therefore, as a result of such condition the
4 Ratuva, Steven. "Ethnicity, affirmative action and coups in Fiji: indigenous development policies between the 2000
and 2006 coups." Social Identities 20.2-3 (2014): 139-154.
5 Tarko, Vlad. "The challenge of empirically assessing the effects of constitutions." Journal of Economic
Methodology22.1 (2015): 46-76.
6 Brown, Richard PC, John Connell, and Eliana V. Jimenez‐Soto. "Migrants' remittances, poverty and social
protection in the South Pacific: Fiji and Tonga." Population, Space and Place 20.5 (2014): 434-454.
7 Kant, Romitesh, and Eroni Rakuita. "Public participation & constitution-making in Fiji: a critique of the 2012
constitution-making process." (2014).

3CONSTITUTIONAL ISSUE AND DEVELOPMENT
voting system in Fiji remain unified. The procedure of appointment into Senate was totally based
on the condition that the individuals belonging to their ethnic groups would be guaranteed
majority rights in voting. With the establishment of parliamentary system in Fiji, the Governor-
General was represented as the Head of the State.
It can be observed that the first constitutional crisis faced by Fiji was during the early
1977 when the National Federation Party was dominated by the Indo-Fijians. The Governor of
ethnic Fijian groups, Governor General Cakobau negotiated with the Mara’s Fijian Alliance for
the purpose of forming a caretaker government8. However, splits within the Nation Federation
Party were observed and as a result of it the leaders of the party hesitated to take control of the
office. In this process, the Mara’s Alliance Party won the election and therefore took the
government under its control. The second constitutional crisis took place during 1987 when the
ethnic Fijians got concerned about the domination of the governmental activities by the Indo-
Fijians. In 1987, two coups were initiated by Lieutenant Colonel Sitiveni Rabuka. In the first
coup, the government led by Timoci Bavadra was disposed. In the same year, the second coup of
Fiji replaced Queen Elizabeth II as the Head of the State. Therefore, as a result of this, the
constitution changed its identification from the Dominion to the Republic of Fiji. However, the
military action created ethnic discrimination and due to this reason the Indo-Fijians were
oppressed under the existing government. In 1990, a new Constitution was formulated for the
purpose of strengthening the control of ethnic Fijian groups within the country. According to the
perspective of contemporary authors, the formulation of a new Constitution was encouraged for
the purpose of establishing the position of the ethnic Fijians in administrative functions9.
8 Gong, Xiaodong, and Maheshwar Rao. "The economic impact of prolonged political instability: a case study of
Fiji." Policy Studies 37.4 (2016): 370-386.
9 Kant, Romitesh. "Constitution-making and Transition to Democracy in Fiji." Constitution-making and Transition
to Democracy in Fiji (2014): NA.

4CONSTITUTIONAL ISSUE AND DEVELOPMENT
Therefore, during that time, 37 of the parliamentary seats were occupied by the Fijians belonging
to the ethnic group. All forms of non-racial voting were abolished by the new constitution.
The Constitutional Reviewed Commission was established in 1995 which resulted into
the third and present Constitution of Fiji, the 1997 Constitution. In the perspective of modern
scholars, the representation of ethnic population has been balanced under the government of Fiji.
Authors were of the perspective that the Constitution of Fiji regained a new shape during the
election of the first Indo-Fijian Prime Minister Mahendra Chaudhry. This time another coup was
experienced by the people of Fiji under Prime Minister Mahendra Chaudhry. However, rebel
broke down on 2002 and the ministers were held in hostage for a considerable period. In this
regard, the coup was denounced by President Mara however; the government was dismissed. The
prevailing condition was declared as a state of emergency by President Mara and therefore took
the executive under his control. However, he left the office on May 29, 2000 and hence questions
were raised regarding the fact that whether he was disposed or he resigned. The military forces
governed by Bainimarama hold control of the existing Constitution with the implementation of
an interim government presided by Laisenia Qarase. However, the nature of such Constitution
was dominated by the population of ethnic Fijians. Modern authors argued that at the beginning
of 2001, no majority were observed in electoral selections and due to this reason Laisenia Qarase
has been appointed as the Prime Minister. As a result of it, the government led by Laisenia
Qarase was declared to be unconstitutional in 2003 by the Supreme Court.
In the beginning of 2013, new constitutional developments and challenges took place in
Fiji with the adoption of a new Constitutional framework. With the emergence of new
Constitution, it marked the end to the two year long controversial constitutional implementation

5CONSTITUTIONAL ISSUE AND DEVELOPMENT
process10. In the perspective of modern authors, the new Constitution proved to be beneficial for
the government in addressing to the existing political instability and issues in Fiji. According to
modern scholars, the constitutional framework of Fiji consists of a vicious pattern of election
system with the involvement of an inefficient government. However, previously various attempts
were made by the government of Fiji in releasing a drafted Constitution. The draft Constitution
was released in March 2013 in order to gather public response in relation to such draft. After
receiving public opinion and by considering the same, the Constitution of 2013 was given legal
assent by the President. Authors rightly stated that as a result of the emergence of the new
Constitution, it promoted and at the same time contributed to the strengthening of the existing
communal lands. The new Constitution of 2013, protected the rights of the indigenous
community, promoted the creation of a single constituency and thereby established the
Parliamentary system11.
It was argued by different authors regarding the fact that the Constitution of 2013 gained
recognition while addressing some of the major challenges of the past. The division of ethnic
population in Fiji was briefly addressed by the new Constitution of 2013. It was stated by
modern autocrats that the new Constitution entrusted the right to vote on all the individuals in
Fiji12. According to the Constitution of 2013, each and every voter has the right to equal vote and
every vote shall be given equal value. However, these votes need to be casted for the electoral
purposes of political parties and other independent candidates who occupy equal position in the
10 Asatryan, Zareh, Cesar Castellon, and Thomas Stratmann. "Balanced budget rules and fiscal outcomes: Evidence
from historical constitutions." (2016).
11 Rodd, Adrien. "Adapting postcolonial island societies: Fiji and the Solomon Islands in the Pacific." Island Studies
Journal11.2 (2016): 505-520.
12 Pande, Amba. "Coups, Constitutions And The Struggle For Power: The Contours Of Racial Politics In
Fiji." Proceedings of the Indian History Congress. Vol. 75. Indian History Congress, 2014.

6CONSTITUTIONAL ISSUE AND DEVELOPMENT
Parliament, based upon the proportion of the casted votes rather than ethnical discrimination. In
addition to this, scholars emphasized on the fact that from the very beginning, the Constitution of
2013 has not imposed any restrictions on individuals who wish to hold position in political field
in relation to their ethnical identification. Contemporary authors were of the view that in spite of
various advantages initiated by the 2013 Constitution, it continues to face criticism from the part
of the general public. The 2013 Constitution of Fiji granted immunity to the officials of the
government which includes the involvement of the government officials, the legislature, the
executive and the judiciary. In this regard, the critics were of the opinion that with the
development of a single and national constitutional framework could favor the interests of the
existing political parties to a large extent. In their perspective, the nature of the newly formed
Constitution may allow the laws passed by the present government to remain in force for a long
time.
From the viewpoint of contemporary authors, throughout the constitutional history of
Fiji, the existence of racial awareness played significant role. Recently, it was observed that
about hundred people gathered in order to protest against the military government for the
formulation of a new constitution. As a result of such gathering, it forced the former politicians
associated with the United Front to write a letter to the President in relation to their opposition to
the proposed constitution. It is worth noting that in the history of constitutional development in
Fiji, this is not the first constitutional proposal for development that has been proposed by the
government. A first consultative process was initiated by the government in the early 2012 which
promoted the appointment of five commissioners. These commissioners comprised of
international constitutional legal experts, local politicians of former political parties and the

7CONSTITUTIONAL ISSUE AND DEVELOPMENT
representatives of local civil society13. It is important to note that various existing political parties
in Fiji opposed to such constitutional development. In the perspective of modern authors, the
commissioners initiated the development of a new constitutional dimension in order to provide
recognition to the indigenous communities of Fiji. The indigenous communities existing in Fiji
provided active support and few others participated towards the contribution14. The end result
was satisfactory, as the new constitutional document produced by the Commissioners was
accepted by the right and left political parties of Fiji. According to modern scholars, with the
development of new constitutional dimension in Fiji, the indigenous population got a new
recognition. Their interests are now protected and they have equal rights towards the political
and social development in Fiji.
However, the military government was only concerned about the existing provisions
which considerably reduced the powers of the armed forces to a large extent. Due to this reason,
the leaders of military forces were held liable for the purported human rights abuses which arose
since the beginning of 200615. A series of debates took place later in 2012 between various
political parties regarding the contents of the proposed constitutional document. It was stated by
contemporary authors that the responses of the military forces in relation to such document has
purely authoritative and therefore seized the proofs of such constitutional document from the
government and burned the existing copies. However, in the early 2013, a new constitutional
document has been drafted by the military government which is purely based on the contents of
13 Klein, Carissa J., Stacy D. Jupiter, and Hugh P. Possingham. "Setting conservation priorities in Fiji: Decision
science versus additive scoring systems." Marine Policy 48 (2014): 204-205.
14 Chattier, Priya. "Women in the House (of Parliament) in Fiji: What’s Gender Got to Do with It?." The Round
Table 104.2 (2015): 177-188.
15 Bryant‐Tokalau, Jennifer Joy. "Urban squatters and the poor in Fiji: Issues of land and investment in coastal
areas." Asia Pacific Viewpoint 55.1 (2014): 54-66.

8CONSTITUTIONAL ISSUE AND DEVELOPMENT
the draft formulated by the Commission in 201216. In the perspective of modern autocrats, in
spite of making considerable effort towards the achievement of a new constitutional reform, the
government of Fiji laid much emphasis on the transition towards democratization. Modern
authors were of the views that the provisions related to the rights of indigenous groups and the
active participation of women in politics were largely ignored by the government. These gave
rise to a constitutional crisis during that period. With the introduction of Bill of Rights, the rights
of both indigenous groups and women were included however; certain limitations were imposed
to these rights17. According to modern authors, the most important matter of concern regarding
such Bill of Rights is that it gave the Prime Minister the right to govern the armed forces of the
country and it entrusted on the Authority-General with the authority to undertake judicial
appointments.
In this regard, it is worth stating that the new constitution of Fiji was introduced in 2013
for the purpose of restoring democracy within the country. The Bill of Rights was introduced in
2013 by the new Constitution of Fiji in order to protect the rights of both women and other
existing groups which are contained between Articles 6 to 4518. The major constitutional issue
that has been noticed till date is that in spite of various efforts to give equal recognition to the
indigenous population, the new constitution failed to address the limitations imposed on the
rights to freedom of association, freedom of expression and the independent appointment of the
judiciary19. In the opinion of contemporary leaders, with the reshaping of the Constitution of Fiji
16 Norton, Robert. "The troubled quest for national political leadership in Fiji." The Round Table 104.2 (2015): 113-
125.
17 Ramesh, Sanjay. "Ethnocracy and Post-Ethnocracy in Fiji." Cosmopolitan Civil Societies: An Interdisciplinary
Journal 8.3 (2016): 115-143.
18 Fraenkel, Jon. "Mandatory Power-Sharing in Coup-Prone Fiji." Power Sharing: Empirical and Normative
Challenges (2017): 103.
19 Fraenkel, Jon. "Governors-General during Pacific Island constitutional crises and the role of the
Crown." Commonwealth & Comparative Politics 54.1 (2016): 1-22.

9CONSTITUTIONAL ISSUE AND DEVELOPMENT
in 2013, it created opportunities for former political leaders to make a comeback with the
restoration of old alignments.
The constitutional development and issue existing in Fiji can be compared with the
principles of constitution. Constitutional law governs the powers and functions of the state
institutions and governs the relationship between the individuals and the state. According to the
opinion of various authors, the subject matter of Constitutional law efficiently governs both the
interpretation and the implementation of the Constitution of a particular country20. However,
authors emphasized that as a result of constitutional issues, disruption can be observed in the
relation patterns which exists between the federal and the state government. In some cases, the
power of judicial review is challenged due to the nature of the existing constitutional issue.
Modern scholars emphasized that the subject-matter of constitutional law is broad and complex
and is often difficult to deal with. In the perspective of various constitutional scholars, from the
very beginning the intention of the framers of the Constitution was to implement the drafting of a
legal document for the purpose of re-shaping the society in a new way. However, according to
the opinion of contemporary scholars, the provisions of the Constitution should be constructed in
such a way so that it could be applicable to matters involving literal and strict constitutionalism21.
Modern autocrats were of the view that it is important to understand the judicial branch
of government while referring to the application of constitutional law in the formation of a new
Constitution. However, in-depth understanding of the judiciary leads to the constitutional
challenges because at this stage, the role of judicial review is challenged depending upon the
grounds of constitutional crisis. In this regard, the concept of judicial review has been
20 Naidu, Vijay. "Fiji: Ethnicity and the post-Colonial." Internal Conflict and Governance (2016): 81.
21 Teaiwa, Teresia, and Raijeli Nicole. "Articulation and Concordance: A Dialogue on Civil–Military Relations in
Fiji." The Good Society 25.1 (2017): 105-118.

10CONSTITUTIONAL ISSUE AND DEVELOPMENT
emphasized by modern scholars by stating the ability of the Court to challenge the nature of
unconstitutionality on the part of the federal and state laws22. This is due to the reason that the
decision of the Court is considered to be binding upon the two branches of the government- the
legislative and the executive. If it comes to the knowledge of the Court that the provisions
implemented by the Constitution is unconstitutional in nature then the Court is at the authority to
repeal such laws and declare them to be void. In Marbury v. Madison23it was held that the Court
is at the authority to declare the action taken by the administrative body to be unconstitutional
and void, if such act is inconsistent with the Constitution of that country. It is worth mentioning
that under the Constitution of 2013 in Fiji, the Supreme Court was established which was
considered as the Court of superior authority. However, the Constitution has not established
courts which are subordinate to the Supreme Court which includes- the Court of Magistrate,
Island Courts and Local Courts.
Modern scholars stated that one of the vital document which is utmost significant to the
subject-matter of constitutional law is the Bill of Rights24. In the initial stage, the Bill of Rights
was formulated to address to the inequalities faced by the Federal government. In this regard, the
present constitutional status of Fiji can be referred. According to scholars, with the introduction
of Bill of Rights in Fiji, it helped to create equal rights between the individuals in relation to
various ethnic groups25. However, in recent era various amendments were made to emphasize on
the rights of women and other vulnerable groups.
22 Mishra, Vijay. "The return of the native: Reflections on the new order in Fiji." Landfall 227 (2014): 87.
23 (1803)
24 Murray, Christina, and Cindy Wittke. "4. International institutions, constitution-making and gender." Constitutions
and Gender (2017): 107
25 Zorn, Jean G. "Constitution Making During State Building. By Joanne Wallis." Pacific Affairs 89.4 (2016): 947-
949.

11CONSTITUTIONAL ISSUE AND DEVELOPMENT
In the conclusion it can be stated that, the Constitution was formulated in reference to the
Ghai Constitution which was based on the principle of one individual and one vote. The Prime
Minister was appointed as the Commander-in-Chief of the military. The indigenous Fijian
population is protected by the new constitution. The Ghai constitution contained certain
provisions related to the arrangements before an electoral procedure. However, the new
constitutional draft implemented by the Fiji government contained no such provisions. The new
Constitution in Fiji was therefore introduced with an intention to pave the way for a new
Parliamentary government. Therefore, it can be finally concluded that with the development of
new Constitution in Fiji, it efficiently addressed the issues which were in existent for a long time.