Can things get any worse in 2013?

Review of 2012: How Bainimarama blew his opportunity to preside over a legitimate new order.

By Jon Fraenkel

In Fiji, 2012 was a year of raised and then repeatedly dashed expectations. In January, brief euphoria greeted the dropping of public emergency regulations, but stiff controls were promptly reinstated several days later. In March, hopes for a relatively smooth restoration of the rule of law and reasonably free elections before September 2014 were greatly encouraged both at home and abroad when Yash Ghai - former United Nations envoy to Cambodia - as appointed by the interim government to head the scheduled Fiji Constitutional Commission (fcc). 

Yet by the year’s end, military commander and Prime Minister Frank Bainimarama had fallen out with Yash Ghai and had declared the government’s intention to extensively rewrite the fcc’s draft constitution and to avoid any public consultation beyond that of a handpicked Constituent Assembly. Soon, plans for the intended Constituent Assembly were also scrapped. 

Throughout 2012, authority to shape Fiji’s future constitutional arrangements remained continually contested. Having destroyed most of the institutions associated with the precoup order, by the end of 2012 the government was busily dismantling the processes it had itself put in place to construct a new order.

In his 2012 New Year’s address, Bainimarama announced that the public emergency regulations would be dropped. Those regulations had been in place continuously since the abrogation of the constitution in April 2009. The announcement was welcomed by local civil society organizations as well as by the United Nations, the Commonwealth, Australia, and New Zealand. 

Yet, within days, a new Public Order (Amendment) Decree 2012 had been introduced that revived many of the key provisions of martial law, including police powers to prohibit meetings, impose travel bans, and undertake house arrests, as well as military powers to assume the roles of police and prison officers. This was the first of many incidents in 2012 in which the interim government appeared nonchalant about its own propaganda gains and reluctant to capitalize on any potential for re-legitimization. 

Nevertheless, the security situation remained calm throughout the year. Open opposition to the planned Namosi copper mine, involving Australian company Newcrest and two Japanese firms, subsided after Bainimarama himself assumed responsibility for negotiations between landowners and mining interests and put the project on hold. In September, there was some resumption of exploratory activity, but care was taken to avoid again inflaming landowner protest.

Mere Samisoni, a former parliamentarian in the deposed Soqosoqo Duavata ni Lewenivanua (sdl) government, was arrested in January and charged together with three others for inciting violence, but all were soon released. In March, another sdl member of Parliament - the former minister of education, Rewa paramount chief Ro Teimumu Kepa - spoke out against Bainimarama’s abolition of the Great Council of Chiefs and called for UN intervention to protect indigenous rights.

FCC consultant: Jone Madraiwiwi (left)

Otherwise, public dissent remained subdued through 2012. The government’s opponents were mostly nursing their wounds and biding their time ahead of the scheduled 2014 elections. Many had migrated overseas. 

The central focus of anti-Bainimarama activity was by now firmly in cyberspace, where participants had an anonymity that encouraged abuse and ineffective rage, though here too activity quietened over 2012. Others focused less on the polarization at the time of the coup six years earlier and more on the fact that an ethnic Fijian leader, backed by a predominantly indigenous military, was finally in charge of Fiji for the long run, unlike after the 1987 and 2000 coups when military rulers had felt pressured to hand control quickly back to civilian authorities. 

Economically, Fiji’s 2011 recovery from the slowdown of 2007–2010 weakened slightly in 2012. The Asian Development Bank (adb) and the International Monetary Fund (imf) estimated economic growth at around 2 percent in 2011, but both anticipated a slowdown in 2012. The economy was awash with liquidity, but investment remained low due to fears about the political situation and constant changes in regulations. 

Visitor arrivals in 2012 were slightly down from the previous

Submissions made in good faith

year, but at around 650,000 the industry was still booming. Ironically, Australian tourist arrivals had kept Fiji’s economy afloat throughout the years after the 2006 coup, while Canberra’s sanctions had sought to sink the Bainimarama regime. 

The chronic decline of the sugar industry continued. Industry Permanent Secretary Lieutenant Colonel Manasa Vaniqi pointed to reduced Fiji Sugar Corporation debt levels since the government took over the industry in 2010, but at 1.6 million tonnes, output in 2012 was half its 2006 level. According to the International Monetary Fund, the industry now comprises only 2 percent of Fiji’s gross domestic product.

 

Sugar’s share of formal employment remains higher, but the still regularly quoted figure of 200,000 people (close to a quarter of Fiji’s population) being largely reliant on cane farming or milling is now a great exaggeration. Figures released in 2012 by the Fiji Bureau of Statistics indicated that gold production continued to increase through 2011, buoyed also by higher international prices. 

There was no sign of the bottled mineral water industry slowing production in response to the 2010 increase in export duties. Garment exports remained flat and fisheries exports stagnated through 2011. Data released from the 2008–2009 Household Income Expenditure Survey suggest that 31 percent of Fiji’s population is living in poverty, with hardship levels particularly high in rural areas.

Internationally, 2012 was a year of busy diplomacy for Fiji, triggered in part by broader geopolitical realignments. In August, United States Secretary of State Hillary Clinton touched down in Rarotonga, Cook Islands, for the Pacific Islands Forum summit, a further sign of the enhanced US attention now being given to that annual event. 

Otherwise, President Barack Obama’s “pivot” or “rebalancing” toward the Asia-Pacific has meant little for the Pacific Island states, except for a new United States Agency for International Development (usaid) office originally planned for Suva but then relocated to the Papua New Guinea capital, Port Moresby. By contrast, Beijing’s soft loans have enabled Chinese firms to bid for construction of hydroelectric dams, roads, and low- and medium-cost housing in Fiji, as well as other infrastructure projects. 

Once a foothold is established, those firms are well placed to make other acquisitions, as with Xinfa Aurum Exploration’s bauxite venture in Bua on Vanua Levu, which commenced shipments in June. For China, Obama’s thinly veiled China-containment policy emphasizes the necessity of courting allies, no matter how small or remote. In September, Wu Bangguo, the chair of the National People’s Congress Standing Committee, touched down in Fiji. He saluted policies of noninterference, encouraged a “Look North” policy, and criticized the “bullying of big region strong countries over the small or weak countries”. 

Other international players flirted with Fiji in 2012, and vice versa. Russian Foreign Minister Sergei Lavrov visited Fiji in April, after trips to Nauru and Tuvalu aimed at encouraging recognition of the breakaway Russian puppet states of Abkhazia and South Ossetia. Georgia responded by sending 200 notebook computers for Fiji schools in the hope that, as Georgian Deputy Foreign Minister Davit Jalaghania put it, Fiji would “remain loyal to international principles”. 

Over the 2011–2012 period, Fiji opened missions in the United Arab Emirates, South Africa, South Korea, Brazil, and Indonesia. In September, Fiji’s Permanent Representative at the United Nations Peter Thomson was elected to chair the g77, a UN body representing 130 developing nations, drawing protests from the International Trade Union Confederation. In November, Bainimarama was selected to chair the London-based International Sugar Organization, an industry body representing over eighty sugar-producing countries. Overseas diplomacy regularly featured persuasion about the righteousness of Fiji’s domestic reform agenda and assurances that Fiji was following its much-advertised roadmap toward elections in 2014. 

 

Meanwhile, at home the Bainimarama government ruthlessly pursued its opponents, often on highly personalized issues. In August, deposed Prime Minister Laisenia Qarase was sent to prison for a year on nine charges of corruption, an action that one former senior military officer and onetime ally of Bainimarama said had always been central to the military commander’s objectives.

Oddly, the convictions were not for offenses committed during Qarase’s period as head of government (2000–2006) but for minor misdemeanors a decade earlier when he was director of Fijian Holdings Ltd (fhl), an indigenous company that thrived under the post-1987 coup affirmative-action policies for ethnic Fijians. Qarase had applied for fhl shares for three Fijian companies but had failed to declare his personal interest in the companies. 

His sentence was twelve months, to be served at Suva’s Korovou prison. Around 300 supporters turned up outside the court to mourn the incarceration of their former leader. Charges against Fiji’s other major pre-coup party leader, Mahendra Chaudhry, were also pursued in the courts during 2012. In addition to prison sentences, by the end of the year there were clear signs that Attorney General Aiyaz Sayed-Khaiyum was actively seeking other methods of harassing both of the main rival political parties as they geared up for the scheduled elections.

In theory, the trials of Qarase and Chaudhry were free from government control. Yet, as indicated in a report titled “Fiji: The Rule of Law Lost” from the Law Society Charity in the United Kingdom (2012), Fiji’s courts were plagued by political interference, particularly at the behest of Attorney General Aiyaz Sayed-Khaiyum. In July, on his departure from Fiji after serving two years as resident justice of appeal, William Marshall qc sent a petition to Bainimarama complaining about “progressive inroads into the independence of the judiciary which process has culminated since mid-April 2012 in a judiciary which at all levels now does what it perceives as required of it by the Executive” and urging the dismissal of the attorney general.

In March, Bainimarama set out plans for deliberations on the new constitution, which were to be premised on several “nonnegotiable” but “universally recognised and aspired to” principles: these were “a common and equal citizenry”; ‘secular state”; ‘removal of systemic corruption”; “independent judiciary”; “elimination of discrimination”; “good and transparent governance”; “social justice”; “one person, one vote, one value”; “elimination of ethnic voting”; “proportional representation”; and a “voting age of 18.” 

Most of these could easily have been embraced by any of Fiji’s postindependence governments, with the exception that ethnic Fijian governments after 1987 flirted with ideas of a Christian state and supported retention of colonially bequeathed communal representation (whereby each community voted on separate electoral rolls).

The idea of a military government setting any “nonnegotiable” provisions was rejected by many, but aside from these two issues the principles themselves were fairly uncontroversial. In comparison with the deliberations of the 2007–2008 National Council for Building a Better Fiji, the 2012 constitutional review was to generate much more broad-ranging participation. 

Optimism that the review would lead to the restoration of democracy was greatly increased by the appointment of Professor Yash Pal Ghai to chair the Fiji Constitutional Commission (fcc). Ghai had taught Fiji’s Attorney General Aiyaz Sayed-Khaiyum in Hong Kong and had worked on both the Kenyan and Nepalese constitutions. Aside from Ghai-nominee South African lawyer Christina Murray, the other three members of the fcc officially sworn into office on 25 July were much more closely associated with the Bainimarama regime: these were community activist Penelope Moore, deposed minister in the 1987 Timoci Bavadra government and Bainimarama loyalist Satendra Nandan, and former education minister Taufa Vakatale. 

As an interim government–appointed body with so many known regime sympathizers, the commission inevitably faced challenges to its credibility. The legal setting was also uncertain. Previous court rulings in March 2001 and April 2009 encouraged the view that the 1997 constitution might still be deemed legally operative or resurrected, thus obviating the need for any new constitutional review. Ghai accused those raising such criticisms of turning a “blind eye to reality”: “We have a situation where there has been military rule for a while and the only way it seemed to me to return to a democratic system is to engage the whole country in a process of dialogue, consultations, finding some consensus”.

Professor Ghai was no stranger to Fiji politics. He had played an influential role in the establishment of the Citizens’ Constitutional Forum, a local non-governmental organization, in the wake of the 1987 coup. He and his wife, Jill Cottrell, had written extensively on Fiji, urging an “integrationist” perspective aimed at bridging divisions between ethnic communities while rejecting “consociational” approaches that treat “communities as corporate entities,” but seek to engineer top-level compromise. 

They were critical of the 1999–2006 alternative vote system, despite this being the central “integrationist” instrument of the 1997 constitution. They also disagreed with the post-1997 power-sharing experiments, pointing to the unlikelihood of robust coalitions being forged between racially demarcated groupings. Their 2008 article ended by noting Bainimarama’s integrationist objective and stating not unsympathetically: “If this is achieved, the pendulum will have swung to the opposite extreme from past preoccupations with race. And Fiji’s fortunes may then tell us something more about the relative merits of consociation and integration."

At the time of that writing, Ghai was obviously unaware that he would himself become a key instrument of the Fiji government’s integrationist orientation in 2012. With a modernist military government in office, the constraints that had prevented the 1995–1996 constitutional commissioners from dismantling corporate representation were now gone (otherwise, the ideological differences were not so large). 

In other respects, however, conditions were much more inauspicious, particularly with regard to continued censorship and restrictions on public meetings, but also because the commission members themselves had not been selected by any elected authority. Early on, Yash Ghai made it clear that some concessions would be necessary from the interim government, reminding them that he had walked away from the Kenyan Constitutional Review Commission in 2004. 

In July, the Bainimarama government issued two decrees, one setting out the functions and powers of the fcc and the other establishing the intended Constituent Assembly. The first, with Yash Ghai’s oversight, included provisions for a suspension of the need for meeting permits under the Public Order Act during the fcc deliberations. 

The second, without Ghai’s oversight, set out that the Constituent Assembly scheduled to deliberate on the fcc draft would comprise members, and a chair, appointed by the prime minister to “reflect the diversity of the people of Fiji,” including government, registered political parties, faith-based organizations, representatives of employers, members of the business community, trade unions, farmers and members of rural communities, Republic of Fiji Military Forces, national organizations, women, persons with disabilities, youth, pensioners, and “other Fijian-registered representative civil society groups.” 

It also made provision for vetting the draft after the deliberations of the Constituent Assembly by a five-member tribunal appointed by the chief justice. Both decrees set out requirements for far-reaching immunities, covering involvement in all three of Fiji’s coups, including the ethno-nationalist coups of 1987 and 2000. 

A day after the release of those decrees, the fcc issued a press release expressing its concern on three key points. First, it pointed out that the decree gave the prime minister “full control over the size and composition of the Constituent Assembly” and as a result that “essential principles of democracy are ignored and the independence of the assembly is negated.” 

Second, it contested the firm requirement that far-reaching immunity provisions be entrenched in the new constitution, urging instead that deliberation on these issues become part of the constitution-making process. Third, it indicated concern about continuing “controls over the media and wide-reaching powers of the security forces,” claiming that these were inhibiting the constitution-making process (fcc 2012a). Such willingness to criticize the government served to enhance the credibility of the commission both within Fiji and abroad. Overseas money - including support from Australia and New Zealand - began to flow generously to fund the activities of the fcc secretariat. 

Relations soured badly between the fcc and the interim government during the second half of 2012. In August, Bainimarama accused Ghai of meddling in Fiji politics and criticized the fcc for providing a “running commentary” on its deliberations and giving “preferential treatment to certain segments or individuals in society who they meet privately”. As the public hearings and submissions gathered steam, the fcc processes captured the public imagination. In total, the commission was to receive over 7,000 written submissions - attracting a greater interest than any of Fiji’s many previous constitutional public dialogues (although the 1995–1996 submissions and hearings were also extensive).  

Many of the submissions to the fcc applauded the 2008 People’s Charter, which by 2012 had become the primary symbol of support for the Bainimarama government. Some submissions were hostile to political parties, including those by Krishna Datt, a former Fiji Labour Party (flp) minister in the deposed 2006 government, and Jale Baba, the former campaign director of Qarase’s sdl party. There were proposals for an elected president, most of which were oblivious to the ramifications of semi-presidential systems with both powerful prime ministers and presidents (the Pacific Islands have no experience of such arrangements). 

The chiefs of Rewa strongly criticized presidential arrangements as facilitating dominance by a “singular or individual subjective authority” in a submission that otherwise conveyed mainly the “feeling of insecure hopelessness, accompanied by great difficulties and anguish” of indigenous Fijians in the Rewa Delta.

 

The two largest parties in the pre-coup parliament - the largely Fiji Indian–backed flp and the largely indigenous Fijian-backed sdl - were highly critical of the constitutional review process. Both lodged submissions that showed how ill equipped they were to set out any broad alternative for the nation. The flp urged a reversion to the original proposals of the 1995–1996 Reeves Commission, including even the abandoned multi-member alternative vote system and 26 communal seats (10 for Indo-Fijians, 12 for ethnic Fijians, 1 for Rotuma, and 3 for the “others”). 

Yet this entailed a share of seats well in excess of the Fiji Indian proportion of the population, around 35 percent by 2012. The submission justified this by claims that “the Indo-Fijians can rightly claim to be the most aggrieved community” and because the “suggested distribution would give the minority community greater confidence about their own future in Fiji."

The sdl submission challenged the Bainimarama government’s “bigger agenda to plunder Fijian resources by weakening the apex of Fijian institutions.” Its recommendations were also narrow and communal in focus. In submissions before the fcc in Suva and Nasinu in August, party representatives urged that Fiji be declared a Christian state, that same-sex marriage be outlawed, and that some communal seats be retained. In a more careful submission in October, the sdl reiterated but also elaborated on those demands. Fiji was urged to adopt a New Zealand–style mixed-member system, with 46 open constituencies and 25 communal constituencies. 

The latter were to be divided into 14 for ethnic Fijians, 9 for Indians, and 2 for the others, a distribution more advantageous to the indigenous community than that urged by the flp. The communal constituencies were to use the list-proportional representation system, whereas the 46 open seats would be decided on a first-past-the-post basis. More logically, this would surely have been the other way around.

In the Fiji context, the call for a Christian state was hugely controversial. The ethno-nationalist agenda after 1987 had been to urge the declaration of a unitary state religion, often encouraged by the militant wing of the Methodist Church. Since the 1987 coup had ousted a largely Fiji Indian–backed government, such calls were viewed by many inside Fiji as aimed at further eroding Indian rights. By contrast, as Yash Ghai rightly pointed out, a “secular state” did not mean an irreligious state but rather a separation of church and state and the freedom to practice whatever religion one chose.

Data released in 2012 by the Fiji Bureau of Statistics from the 2007 Census indicated that Fiji’s population is 27.9 percent Hindu, 6.3 percent Muslim and 64.4 percent Christian. Nearly all Hindus and Muslims are Fiji Indian, and 99 percent of ethnic Fijians are Christian, helping to explain why fixing singular religious labels on the state is so inflammatory. 

Changes in proportions are also hugely significant. The equivalent figures from the 1996 census were respectively 33.7 percent, 7 percent, and 58 percent. Thus, in tandem with the increasing Fijian population share, the country is becoming more strongly Christian. (Interestingly, the Methodist share among Christians has fallen significantly, from 62.4 percent in 1996 to 53.7 percent in 2007.) 

In October, Bainimarama responded angrily to the fcc appointing former Vice President and Bau chief Ratu Joni Madraiwiwi as a consultant. The interim prime minister alleged that Ratu Joni was party to a submission to the fcc urging a Christian state, contrary to the “nonnegotiable principles” set out in March that required “a secular state,” and that he had done so while serving as an fcc consultant. 

In fact, Ratu Joni had only participated in a delegation as a Bau chief and had not endorsed the contents of that submission. Ratu Joni is well known in Fiji as liberal by political persuasion and, although indigenous, as highly sensitive to the concerns of Fiji’s Hindus and Muslims. In July, he had expressed the view - not shared by many other observers - that ethnic frictions were waning in Fiji: “We are still a fractured society although I also have to say that ironically, inter-racial relations appear to be better than they ever were”.

The attack on the fcc over Madraiwiwi’s appointment - one of many red herrings that ostensibly drove Fiji’s political processes over 2012 - was to provide the pretext for a thoroughgoing reworking of the scheduled constitutional review process. 

On 31 October, a new decree canceled all public consultation on the fcc draft, removed the fcc’s powers to detail necessary changes in law associated with the new constitution, and demanded that the fcc detail its income and expenditures. Yash Ghai responded by telling reporters that the government had lost its enthusiasm for the constitutional review process. He revealed that there had been “massive interference” by the government in the work of the commission.

The Republic of Fiji Military Forces belatedly made its own submission to the fcc in December. This recounted at length a heroic history of the rfmf’s defeat of the ethno-nationalist uprisings of 2000 and conveyed some degree of bitterness against the entire civilian political order: “We [the rfmf] have been collectively marginalized, sanctioned and ‘kicked in the gut’ one too many times.” The submission was critical of the “West Minster” model (sic) and said that the alternative vote system had “given all in Fiji nightmares.” It urged a 46-seat unicameral parliament and a president selected by Parliament. The key passages focused on the guiding role of the armed forces to ensure “good governance.” It said that there was “an enveloping comfort that the Forces exist to deal with both the Internal Security situation and external threats.” 

Echoing battles from the pre-coup era, the submission insisted on the retention of a provision contained in the 1990 constitution giving the rfmf “the responsibility . . . to ensure at all times the security, defence and well being of Fiji and its people” (rfmf 2012). The reference to the “well-being” of Fiji’s people could, of course, mean responsibility for just about everything. The rfmf envisaged itself as having huge powers, but for usage in a “guardian” role rather than through assuming direct responsibility for government.

In December, Ghai handed over the fcc’s 199-page report to the president. The draft contained all the non-negotiable provisions set out in the government’s July decrees, including the provisions for immunity. It entailed Fiji returning to a more strictly Westminster constitution, but with some unusual features. There were no provisions for a second chamber. 

Nor were the 1997 constitution’s multiparty cabinet power-sharing provisions to be restored. A 71-member Parliament, larger than that favored by the interim government, was to be elected for a four-year term by a closed-list, proportional-representation system, with provisions for a French-style “Law on Parity” requiring parties to alternate men and women on their lists. 

On the advice of Norwegian electoral specialist Kåre Vollan, this was to be facilitated through a mixed-member system, with 60 members of Parliament selected from four constituencies and another 11 “top up” members also to be selected by closed-list proportional representation. The objective was to achieve a very exact proportionality between seats won by, and votes cast for, political parties, but the cost was considerable complexity. Compensatory mixed-member systems are better suited to usage of two different types of voting system (eg, where a list component adjusts for the nationwide disproportionality generated by a single member district plurality system, as in Germany and New Zealand). 

The integrationist centerpiece of the constitution was to be a National People’s Assembly, with powers to elect the president of Fiji. This was to meet annually and bring together politicians, local government representatives, civil society organizations (including the Great Council of Chiefs), and a group of ordinary citizens chosen by lot to deliberate on the affairs of the nation. 

There were a very extensive bill of rights, provisions for a consultative forum on land matters, and requirements for legislation on political parties and local government. Most controversial were the transitional provisions, which would have entailed Bainimarama and his cabinet surrendering power to a Transitional Advisory Council prior to the scheduled elections. All military officers (bar the commander) would have had to resign their commissions if they chose to continue as public servants. 

The government felt itself under no obligation to accept any of these recommendations. Land Force Commander Mosese Tuitoga accused Ghai of ignoring the rfmf. In an effort to contain publication of the fcc draft, police seized 600 copies in December and even set fire to some shredded galley proofs. After this incident, Ghai described the “position of the Attorney General” as “extraordinary, and hard to understand.” Now outside Fiji, he released the document online.

The approach of seeking to build popular momentum behind the constitutional review had temporarily reinvigorated Fiji’s beleaguered political scene. Indeed, the rfmf’s own submission said that the fcc review had “brought about a sense of belonging culminating in a national pride of want and togetherness which we must continue to foster”.

Yet for Bainimarama, Aiyaz Sayed-Khaiyum, and a few senior military officers, this had also proved hugely challenging to their now well-entrenched authority. In response, as in the wake of the 2009 Court of Appeal judgment pronouncing the government illegal, they again resorted to using the president as a mouthpiece for a dramatic reorientation.

On 10 January 2013, Fiji President Ratu Epeli Nailatikau addressed the nation, describing the Ghai draft as backward looking and claiming that the commission “has unfortunately perhaps succumbed to the whims of the few who have an interest in perpetuating divisions within our society.” To adopt the draft, the president said, would lead to “financial and economic catastrophe and ruin.” 

Nailatikau had a particularly negative assessment of the proposed National People’s Assembly, which was to have been the body charged with electing Fiji’s future presidents. It was “anathema to democratic representation that the Ghai Draft allows for, at the very least, a 144-member body of unelected people deciding on key issues pertaining to the people of Fiji”.

This was an extraordinary outburst, entailing condemnation of the key instrument of the government’s own strategy for re-democratization. The logic was also hard to figure: the government controlled the appointments to the Constituent Assembly, which according to the July decrees could itself have amended the draft. The chief justice also had a final say, through a five-member tribunal. Clearly, the government saw risks associated with the popular momentum that had built up around the fcc and wanted to firmly reassert control. Yet picking this option meant that Bainimarama had blown his opportunity to preside over the creation of a legitimate and durable new political order. 

The attorney general’s office would rewrite and revise the draft in 2013, removing the National People’s Assembly, further fortifying immunities and amnesties, taking out all concessions to hostile forces, and setting in place cast-iron methods for the commander and his chief lawmaker to closely supervise the transition - if there was to be any meaningful transition at all.