lntroduction

The former British colony of Fiji attained independence in October 1970. It was given a written Constitution similar to that of most former colonies, with a 'Westminster' style of Cabinet government and representative democracy, although with special features to take account of its racial mix. In July 1981 an army colonel, Sitiveni Rabuka, led a coup against the government which had been elected a month earlier and which included Indian Cabinet Ministers. In July 1997, 10 years after that coup, a new Constitution was unanimously adopted by both the House of Representatives and the Senate. It came into force a year later, on 27th July 1998. Elections were held under it in May 1999 which resulted in the appointment of Mahendra Chaudhry as the first Indo-Fijian Prime Minister and a Cabinet drawn from members of parties which made up the People's Coalition.

For the first time in its history, Fiji - the Fiji Islands as it was now called - had a truly representative government, with members from all its races (although there was no Chinese Senator as there had been previously). However, a year later, on Friday May 19th 2000, George Speight and a group of gunmen, from an army unit supposed to protect the government from revolutionary activity, invaded the Parliament Chamber in Suva. They captured more than 50 Parliamentarians and staffmembers, some of whom were soon released, and made a number of demands. Augmented by several hundred supporters who were let into the Parliament they continued to hold hostage most of the members of the Cabinet and several other MPs - 31 hostages in all - until their demands were met, namely the abrogation of the Constitution, the resignation of the President, a declaration of immunity from prosecution for Speight and anyone acting under his authority, and the appointment by a new President of an Interim Civilian Government.

After the release of the hostages Speight and others were arrested for treason but the Interim Civilian Government continues to exercise the powers of government and as of this writing, the prospects for a return of the lawfully elected government are nil. The best offer is a new Constitution in August 2001 and elections in September 2002; no-one has explained why it needs to take so long to have elections.

I was First Parliamentary Counsel in the Fiji Islands from January 1998 to April 2000, funded by the Commonwealth Secretariat. I left three weeks before the 'coup' of 19th May. Some people have assumed that I knew what was coming and got out because of it, but that is not so. I left for personal and professional reasons, to take up a law drafting post in Grenada in the West Indies. I was totally dumbfounded while in Hong Kong to learn of the invasion of Parliament by George Speight and his gang. (In April 1999 I had had a rather abrasive encounter with his father, Sam Speight, as an MP in connection with a Bill for the Rewa Dairy, but I did not know George Speight personally.)

I have been logging onto the website 'fijilive.com' every day since my arrival in Grenada to follow events in the country I worked in for two and a half years. I still cannot come to terms with the fact that the work I did to help implement the l997 Constitution and to draft new laws for a newly-constituted country (140 Bills in all) has came to nothing This is my personal, perhaps somewhat cynical, response to those events. Future developments may make my cynicism unjustified - I would like to think so.

Fiji - The Burma of the Pacific

This is actually the third time since independence that the people of the Fiji Islands have been deprived by force of their right to have the government of their choice as shown at the ballot box. (See below for the events of 1977.) It means that Fiji has outdone by far the denial of democratic process which Western countries rightly condemn in Burma (Myanmar). It seems that the normal rules do not apply to the Fiji Islands. If Fijians do not like the government that they have elected, they do not need to wait 3 or 4 years for the next elections but are allowed with impunity to throw out the elected government by force.

What gives Fiji the right to keep doing this and get away with it? It seems to be because of the absurd notion that 'indigenous rights' somehow alter the normal rule of having to live with the consequences of your electoral decisions. In Burma, the failure of the Generals to return the government to those who won the elections in 1990 has rightly caused much indignation in the international community. If the Generals could claim that they were acting an behalf of the indigenous people of Myanmar, no doubt they would be forgiven; but the 'indigenous' people are up in the mountains, resisting the Generals, so they become the heroes and the Generals are the demons.

In Fiji, because it is indigenous people who keep throwing over the elected government by force, the international community seems to bend over backwards to make excuses and find reasons to continue to deal with the supplanters. This must be the reason why the usurper Prime Minister Qarase was allowed to address the UN General Assembly recently, rather than the elected PM Chaudhry. There is even mention made of the UN Declaration on the Rights of indigenous Peoples, although the indigenous Fijians own 83% of the land through landholding units, have complete equality of access to public office etc. and have a Ministry and a Trust Board dedicated to their interests. These provisions have been entrenched in every Constitution since independence and even the People's Coalition Government, with its large majority, could not have removed them without the approval of the Senators appointed by the Great Council of Chiefs.

The 1977 Elections

I said that this was the third time that Fiji had denied by force the results of a democratic election. The first denial of democracy was in 1977 when the National Federation Party (a mostly Indian party) effectively won the elections, with 26 seats in a 52-member Parliament. The party leader, Siddiq Koya, was not appointed Prime Minister by the then Governor-General. He was summoned to Government House 3 days after the election results were declared only to be told he would not be appointed as PM; at the same time, Ratu Sir Kamisese Mara, leader of the Alliance Party and previous PM, was leaving by the back door, having just been re-appointed.

The pretext for not appointing Koya was that he did not have the necessary support in Parliament, and it is true that Koya's Parliamentary party was in disarray. However, there are grounds for saying that another reason was that there had been threats from nationalist groups to do violence and generally destabilise the country if Koya was appointed PM. The then Commissioner of Police so reported to the Governor-General and there was concern felt as to whether the police and army would be able - and inclined - to contain the violence. It is reasonable to suppose that it was this as much as the numbers in Parliament that swayed the Governor-General in his appointment. There are papers in the ECO archives on this episode but under the 30-year rule they will not be released until 2007. See meanwhile the chapter on Fiji by Prof. David Murray in 'Constitutional Heads and Political Crises: Commonwealth Episodes 1945 to 1988' Macmillan 1988.

If this scenario is correct, the 1977 denial of government to an Indian-led party was in reality a hidden coup by so-called Fiji nationalists. Its success appears to have encouraged the forces of lawlessness and gangsterism in Fiji to assume that they could get away with unconstitutional methods; they still think so, with every justification. At least the 1977 events were under the apparent authority of the Constitution, with the Governor-General purporting to exercise his discretion in the appointment of a Prime Minister. The elections which followed gave Mara's Alliance Party a majority again so the underlying threat of force receded.

The 1987 Coups

The May 1987 coup against the Bavadra government after only a month in office was a more explicit use of force, this time against not only the duly appointed Cabinet but against the lawfully elected Parliament. After an attempt to patch up an agreement between the politicians - the Deuba Accords - there was a second coup in September. That led - probably unintentionally - to Fiji becoming a Republic and being expelled from the Commonwealth. The expulsion was not because Fiji became a Republic (most of the Commonwealth countries are republics, after all) but because of the manner in which it was done; overthrowing a lawful government by force and in effect committing treason against Her Majesty's representative. The Governor-General resigned after the second coup, leaving no-one as the Head of State. It was not possible in 1987 for the Council of Chiefs to do what they did in 2000 and simply appoint another Head of State, as the appointment of a Governor-General was a matter for the Prime Minister to advise Her Majesty on. So Rabuka simply declared Fiji to be a republic and appointed a President himself.

The 1987 coups at least had the virtue of being bloodless and effective; Rabuka himself in private makes the joke that that shows that the Americans were not involved with them. (The reason why they might have been is that the Bavadra government had declared Fiji to be a nuclear-free zone and denied entry to U.S. warships carrying nuclear missiles.) An interim military government was quickly established, followed by a civilian government which ruled by Decree until elections were held in 1992.

However efficient the 1957 coups might have been in giving the country an effective government, they were clearly a denial of the choice of the electors and they disenfranchised the population by abolishing Parliament. If the government had been confident of electoral victory, such as Mara and his Alliance Party achieved in 1977, they could have gone to the polls under the 1970 Constitution. That Constitution only needed amending by replacing the Governor-General by a President (appointed by the Great Council of Chiefs) to be a perfectly adequate republican constitution. Instead, a new Constitution was proclaimed in 1990 which did away with cross-voting and open seats and required the Prime Minister and the Chairman of the Police Service Commission (why only that Commission?) to be indigenous Fijians. Curiously, it did not require the President to be an indigenous Fijian - probably because it did not occur to anyone that the Great Council of Chiefs would ever appoint a non-Fijian. The next Constitution will no doubt remedy that oversight and ensure a racial disqualification is built in.

The SVT Government, 1992 - 1999

The elections held in 1992 under the 1990 Constitution could have been boycotted by the Indian community put in the event they were supported by both the National Federation Party and the Labour Party, although the former only went in to get the Constitution changed. The elections therefore had legitimacy (if events after a coup can ever be legitimate) and gave Rabuka and his SVT Party, which had been formed with the blessing of the Great Council of Chiefs, political respectability. They were followed by fresh elections in 1994 because of a falling-out among the Fijian politicians. (Does that sound familiar?) The particular reason for dissolving Parliament was a failure to agree the 1994 budget. The breakaway faction was the Fiji Association Party, which in 1999 joined the People's Coalition (but then split within itself).

At one stage Mahendra Chaudhry, leader of the Labour Party, was prepared to support Rabuka in forming a government but in the end he went into opposition. But he did not become the leader of the opposition; that role went to Jai Ram Reddy, leader of the NFP, which became the Loyal Opposition. Chaudhry and a handful of other Labour MPs became the Vociferous Opposition. The NFP, at least while I was there in 1998 and 1999, were rather feeble in opposition, and all the effective attacks on the SVT Government came from Chaudhry and the Labour Party. That was probably because by then Reddy and the NFP were looking forward to being in Cabinet under the new Constitution which had been agreed in 1997. But it was also no doubt one of the reasons for the NFP's virtual extinction in the 1999 elections.

After a few years' experience as Prime Minister of an elected Government, Rabuka began to have further thoughts about the best road for the country to follow. To his credit, he finally realised that the Indian citizens of the country could not be excluded forever from political office, and he looked for ways to achieve a multi-racial government without tearing the country apart. Like Wallace the Lion, in 'The Return of Albert', he began to have second thoughts about swallowing young Albert - "He were sorry the moment he'd done it; With children he'd always been chums. And besides, he'd no teeth in his noddle; And you couldn't chew Albert on t'gums." In Rabuka's case we can say - "He was sorry the moment he'd done it; With Indians he'd always been chums. And besides, he'd no trade and no money; And you couldn't rule Fiji with guns." In fact, the Indians did not then and do not now control the trade or the money to the extent supposed, but the perception was that they did which is what mattered then and matters now.

The 1997 Constitution

This realisation led Rabuka to initiate a review of the 1990 Constitution which ultimately led to what was in effect a brand-new Constitution (although called a Constitution Amendment Act for presentational purposes). Its key provision was a requirement for the Prime Minister to invite into the Cabinet "all parties whose membership in the House of Representatives comprises at least 10% of the total membership of the House." (See section 99(5).) This amounts to a requirement to appoint as Ministers some MPs from parties that would otherwise be in opposition - a 'forced coalition' in effect. The intention was that Fijian and Indian parties would be required to combine to form a government, and that therefore there could be no objection to a multi-racial government, as had happened twice before.

Rabuka's emergence as a Born Again democrat was welcomed enthusiastically by the international community, particularly Australia and New Zealand, and offers of aid and advisers were quickly forthcoming. Indeed, rarely in the cause of electoral democracy has so much been offered by so many to so few. New Zealand provided Sir Paul Reeves to chair the Constitutional Review Commission. Australia provided Denis O'Brien to draft the new Constitution. In June 1997 Britain provided myself (I was then in Tuvalu as a Constitutional Adviser) to write a report for the Fiji Government and the Commonwealth on the draft's compliance with the Harare Declaration. Once the Fiji Islands had been accepted back into the Commonwealth, in October 1997, the Commonwealth Fund for Technical Cooperation was able to fund my services as First Parliamentary Counsel and I began work in January 1998.

In 1998 New Zealand funded a Parliamentary seminar on the workings of sector committees. New Zealand also provided David McGee, Clerk of the Parliament in Wellington, to re-write the Standing Orders of the House of Representatives and the Senate. In February 1999 New Zealand also funded a meeting of Permanent Secretaries to discuss their role under a multi-party government. Meanwhile, in January 1999, the Inter-Parliamentary Union funded a meeting of heads of Parliamentary parties with speakers from South Africa, New Zealand and Cameroon. The meeting resulted in the signing of the Korolevu Declaration which attempted to set out how the multi-party Cabinet concept would work in practice.

All this effort was made on the assumption that in the elections, set for May 1999, the SVT party would achieve an overall majority, with the NFP coming in a respectable second. The Labour Party was expected to :et enough seats to form a viable opposition, with other parties allying themselves one side or the other. The main point of this scenario was that Rabuka and Reddy would be able to form a Government, with Reddy and some other Indian MPs invited into Cabinet without any adverse reaction from Fiji nationalists.

It is to the credit of Rabuka and other SVT leaders that they pursued this idea of a multi-party (i.e. multi-racial) Cabinet with enthusiasm. I believe that people like Felipe Bole, who came up with the threshold concept, genuinely thought the way ahead lay in multi-party government. Unfortunately, there were flaws in the scheme from the start. One of them was created by Chaudhry himself who insisted on an extra seat for the Indian electorate. This resulted in 71 seats in the new Parliament, which made the calculation of 100/a far the threshold provision rather difficult. My advice that a party must have 8 seats to qualify, rather than 7, was generally accepted, but the 71-seat configuration made all calculations based on proportions unnecessarily complex.

But the main flaw in the plan was a total miscalculation on the part of the SVT and the NFP (and, one can say, of most observers) as to the probable outcome of the elections in May 1999. The NFP was obliterated, gaining no seats; even Jai Ram Reddy lost his seat. The SVT was emasculated down to 8 seats. The Labour Party gained 37 seats and was clearly entitled to form the Government, even without the help of any other parties. It is to Kamisese Mara's credit that he did not delay long before appointing Chaudhry as Prime Minister. The exact nature of the discussions at Government House have not been disclosed, but it seems probable that Mara first asked Chaudhry to agree to a Fijian being appointed as PM, with himself in another position. Chaudhry refused, which nearly led to the Fiji Association Party pulling out of the coalition. This in turn led to Chaudhry including 2 VLV members in the Cabinet (including Adi Koila Nailatikau, the President's daughter.) The resulting Cabinet had a majority of indigenous Fijian Ministers, which makes the subsequent events all the more inexplicable.

The People's Coalition Government, May 1999 to May 2000

The government that was formed called itself the People's Coalition (and the parties had campaigned under that name) but it was not a coalition as contemplated by section 99 of the Constitution. It was a voluntary coalition, of the kind that most governments in most countries are made up of . Labour only needed the FAP and other parties in the coalition if it wanted to amend the Constitution or other entrenched laws, which required a two-thirds majority. As the coalition parties were Fijian parties (plus a couple of general voter representatives) the idea that the Constitution or entrenched laws could be changed without thc consent of any Fijian party was simply wrong. This has a bearing on the events of May 2000 and suggests that they were caused not by lack of confidence in the Labour Party (whose agenda was well known) but by a lack of trust in the Fijian coalition partners.

Chaudhry did extend an invitation to the SVT to join the Cabinet, as he was obliged to do under section 99, but in response, Rabuka, still the leader of the SVT, made a number of requests e.g. to have a Deputy Prime Minister and the Foreign Affairs portfolio and 2 other seats in Cabinet. Given that the section only requires the Prime Minister to include other parties in proportion to their numbers in Parliament, Chaudhry considered these demands unreasonable and rejected them. I do not think he can be faulted for doing so as a matter of law, although he could perhaps have negotiated rather than reject Rabuka's terms outright. Whether the rejection was a wise move politically is another matter; subsequent events suggest not, although given the totally unprincipled nature of those events, no-one can be sure. Much play is now being made of Chaudhry's rejection of the idea of a Government of National Unity in May 1999, but there is nothing to suggest that the SVT has ever been realty interested in one either.

One result of the elections was that all the work that had gone into preparing Parliamentarians and civil servants for a multi-party Cabinet went for nothing. The Korolevu Declaration became so much waste paper, since the coalition was a voluntary one and the rules about reference back to MPs and dissenting votes etc. did not come into play. Perhaps more significant was the sheer loss of experienced Parliamentary manpower. By my reckoning, the Fiji islands lost nearly 400 person-years of Parliamentary experience at a single stroke. (That is based on 7 years since 1992 multiplied by the 56 sitting MPs who lost their seats.)

The new Parliament was almost completely lacking in political experience, knowledge of the rules and procedures of the House or any understanding of the legislative process. This put great pressure on Mary Chapman, the Secretary-General to Parliament, and on myself as Parliamentary Counsel. The one factor which made for some continuity was the re-election of Dr. Kurasaqila as Speaker. (The election of the Deputy Speaker was one of the earliest muddles in the new Parliament, but that will have to be another story.)

At all events, the new Parliament and new government were thoroughly legitimate in terms of the Constitution and the electoral process. They were entitled to their 5 years in office; they were entitled to make mistakes and to have the Opposition point them out. They were entitled to introduce Bills and have them debated and put in place policies which were in their manifesto. At the end of their 5 years they might have been defeated at the polls. We shall never know, because after only 12 months Speight and his gang burst into Parliament and destroyed the whole Parliamentary and democratic process.

Absurdities of the May 2000 events

What makes this repeated pattern of illegality by indigenous Fijians so absurd is that the elections were lost each time, not because of Indian manipulation or money or numbers but because the indigenous Fijians keep falling out among themselves and handing the elections on a plate to the Indians and general voters. Thus in the May l999 elections there were no fewer than 11 Fijian parties splitting the Fijian vote. Support For the SVT, which was the government party and was supposed to be the main Fijian party, was so poor that it was reduced to a rump of 8 seats. (It is significant that a majority of the Ministers in the Interim Government have connections with the SVT which has thus been able to regain its political hold over the country, but by illegal means.)

Another absurdity of the latest events is that they are supposed to strengthen the political and financial position of indigenous Fijians, but the Rabuka interim administration, followed by the SVT Government which he also led, had every opportunity to do that in the 12 years it was in power. The latest 'blueprint' for promoting Fijian interests put forward by Interim Prime Minister Qarase is actually just a photocopy of proposals made after the l987 coups and after the 1992 elections. How long will it take for Fijians to establish themselves in commerce and business? My own view is that until the chiefly system is done away with or at least reduced to a formality, they never will, as that system inhibits individual initiative and means the chief has to be deferred to on all important decisions. Real prosperity for individual Fijians can also never come until individual Fijians have the right to own land and make decisions about it.

The May l999 elections seemed to show that the chiefly system was weakening, as chiefs stood against chiefs and commoners against their chiefs. (See on this a talk given by Filimone Jitoko to the Pacific lslands Society at the Royal Commonwealth Society in London in May 1999.) The May 2000 events gave the chiefs a chance to recover their Iost role; there are several "Ratu"s in the Interim Cabinet. This makes the opprobrium heaped on George Speight's head by the Interim Cabinet ring rather hollow.

One feature of the events of 2000 which is not so much absurd as sickening is the role of the Christian church - particularly the Methodist and Seventh Day Adventist Churches. Although the coup was initially denounced from Methodist pulpits, Methodist and SDA Ministers were prominent among the supporters of Speight and one of the aims of the proposed new Constitution is for Fiji to be declared a Christian State. Western values (other than Christianity, presumably) are criticised as being inappropriate for Fiji as a developing country with an indigenous culture. This overlooks the fact that 'western' values are in essence Christian values of equality, respect for others' rights and acceptance of the rule of law rather than use of Force.

Questions to be asked

It is my firm belief that even though Speight and his gang were armed, there need not have been the capitulation that there was. On the first evening President Kamisese Mara declared a state of emergency and ordered Parliament cordoned of f. But that did not happen and by the next day there were hundreds of people in the compound (where my office had been until March 2000). Old women were dancing with Speight and garlanding him with leaves; a church Minister drove him through the gates; food and drink were brought in. Clearly there was police complicity, and the current investigation into Commissioner Savua might establish the extent of it. But why investigate Savua when the present Cabinet are all benefitting from his actions?

Another question is how the gunmen obtained their arms - it appears that arms were still being obtained from the RFMF armoury two days after the coup. And how were they funded during all the months of the hostage crisis? It seems that funds might have been provided even by Indian business men, and given the ability of Indians to fall out among themselves on political matters, that would not be surprising. Again, there is talk of an investigation, but do the present Ministers really want one, I wonder?

It is not clear how the hostages were provided for in the first few days; villagers bringing in local dalo etc. seems to be the answer. After that it appears the Red Cross provided beds and food. But surely if you are going to take hostages, you must be prepared to provide food and water and medical treatment etc.. Is it usual for hostage-takers to be assisted in their criminal actions by the Red Cross, and if so, why? If electricity and water had been cut off to the Parliament compound; if Speight's supporters and the press had been refused all access; if it had been made clear that there would be no concessions of any kind and that the lawfully elected government must be restored as soon as possible, would the hostage-takers really have shot hostages, or would they have had to capitulate? If you know that the whole establishment is against you, and that no concessions of any sort will be made, what can you do but give in?

The trouble is that the whole establishment were not against Speight and his gang. Many supposedly respectable leaders applauded secretly - and indeed openly - what he had done. There was a widespread dislike of Chaudhry personally and politically among many sections of the community; even hotel receptionists referred to the country as 'Fijistan'. What really shocks anyone who has lived and worked in Fiji is that there was widespread complicity in the unlawful actions of Speight and his gang. Arguably, the whole country deserved to suffer from any sanctions the international community chose to apply as there were no truly innocent victims. If really effective trade sanctions had been applied, they might have restored Chaudhry's government, if that is what people wanted. But did they?

Watching from a distance an illegal government came into existence in a place one knows well is a very unsettling experience. One feels that there must be so many points at which the process could be stopped. Why did the new Ministers get their salaries paid, and by whom? Who gave them the keys to the Ministerial cars (which must have been parked in the Parliament compound)? Why were the meaningless decrees of the Military Government and then of the Interim Civilian Government published in the Government Gazette? Why are people paying their taxes? The answer always has to be - because of complicity in the illegality by many people.

Political lessons of the 'coup'

The main lesson of these events is that they show the country does not really know what it wants. The trade unions tried to get sanctions imposed, but were criticised by employers and by workers who would lose jobs. The chiefs of western Viti Levu started a movement for separation which came to nothing. Every landholding unit with a grievance started to use force to make its demands known. Old personal or racial animosities between villagers and farmers flared up. The army was quick to take over the role of the police who were incapable of keeping order. Everyone took advantage of the situation, and the winners were traditional Fijian leaders who were able to persuade themselves that it was their duty to accept office as a Minister in a Cabinet appointed by a President who was himself appointed by the Great Council of Chiefs.

To me as a constitutional lawyer, this is all very horrible. But at least it confirms that constitutional processes are in the end the best safeguard of people's rights. If there had been from the start insistence that the Chaudhry Government was the only lawful one there might have been some violence, but probably no more than the police and army could handle. It is interesting to note that there has been little violent reaction to the arrest and trial of George Speight, and I do not believe there would be violent objection to a return of the lawfully elected government. After all, presumably Chaudhry and his team have learnt some lessons.

One of the lessons that they must have learnt is not to make too many enemies at once. It was disappointing to observe after May 1999 how quickly the press, which had supported political change, was antagonised by flatfooted treatment. Businessmen were also antagonised by various policies which were in the manifesto but which achieved little real benefit to poor people.

Another lesson Chaudhry has presumably learnt is not to move too fast on too many issues, even if you have a good majority in Parliament and even if you've been waiting many years for your chance. One of the reasons I left the Fiji Islands was that the Government wanted to rush ahead too fast with too much complex legislation, without first finding out how the system worked. Chaudhry should have been glad just to be the first Indian Prime Minister of such a volatile country at all. It was not necessary to implement everything in the People's Coalition Manifesto in the first year. Conciliation and a gradual approach was what was needed. Instead, he seemed to echo Omar Khaiyyam (as many of us do from time to time) - "Could thou and I with Fate conspire To grasp this sorry Scheme of Things entire, Would not we shatter it to bits - and then Re-mould it nearer to the Heart's Desire." Kamisese Mara was reported as saying before he resigned that he would not necessarily re-appoint Chaudhry, 'who has caused all this trouble.' It was an unfortunate remark, as it gave fuel to the anti-restoration forces, but it was probably a sentiment shared by many.

But if they acted unwisely in some respects, Chaudhry and his cabinet nonetheless acted within the law. They did not deserve the ignominy and stress of 55 days' imprisonment at the hands of gunmen. After all, they did no more than many other newly elected governments do and made some errors of judgement. It is in the nature of parliamentary democracy that elections sometimes produce governments that people find they don't want. That is why in a democracy there is provision for lawful change of the government. Was it so impossible for indigenous Fijians to wait another 3 or 4 years to achieve a change of government? (And would they have got the one they wanted even then? Have they got the one they want now?) And who actually was it that didn't want the Chaudhry government? A march even by 5,000 people (as happened on the day I left Fiji, 28th April) is not the voice of the whole electorate. And maybe the government would have responded to the dissatisfaction shown by such demonstrations; we shall never know.

All these speculations are actually rather pointless, since the nature of the events on and after May 19th show that they were not a reasoned response to a political programme. What possible connection can there be between a legitimate grievance over perceived threats to indigenous rights, and the violence and thuggery shown by the Fijians? The invasion of Parliament was quickly followed by a rampage through the streets of Suva during which many Indian shops were burnt and looted. Over the following weeks and months there have been many random acts of violence, the taking of hostages, the arson of schools and Government offices, the terrorising of Indian farmers. The Parliament compound was extensively damaged during its occupation by Speight's followers, with floors dug up, precious mementos removed, cars burnt where they stood, and condoms left to litter the rooms once used by dignified committees. At one stage it was suggested that Parliament could never be used again, but now it is to be restored at a cost of over F$800,000. Where in all this is the principled stand for indigenous Fijian rights? It is just the demon of violence and lawlessness which is the very thing that the rule of law is intended to protect us ail from.

Other lessons to be learnt

What other lessons can be learned from this episode so far? For the National Federation Party and the SVT, the lesson of the May 1999 elections is - don't expect an alternative vote system to bring you any electoral advantages. The fact that voters could place candidates in an order of preference meant that in constituencies where Labour had the preferred candidate the NFP or SVT came not second or third but bottom of the list. Labour would still have won under the first-past-the post system, but the NFP would probably not have been extinguished in the way it was. However, it is to the NFP's credit that they are not seeking to change the Constitution in this respect; indeed, they have refused to have anything to do with the Constitutional Review Commission, saying that its conclusions are a 'fait accompli.'

A second lesson of the events of May 2000 is that the oaths taken by Members of 8ar~iament and Ministers mean nothing if the oath-takers see personal advantage in breaking them. The oath is "to be faithful and bear true allegiance to the Republic of Fiji according to law." The Interim Cabinet includes two former members of the People's Coalition Government, 6 former MPs and 7 former senators. What is their oath worth, and to whom is their loyalty, one wonders?

A lesson for anyone taking over the government of Fiji in future is - disband the army as soon as possible, or at least neutralise it. It is all too ready to take over the role of the police whenever there is a disturbance in the country, and the result is that the police do not do their job properly. Get rid of the military firearms; disband the so-called 'elite' units; convert the discipline and energy to more productive uses such as environmental work or old people's homes.

A lesson for anyone devising a constitution for Fiji or any other country is - don't base it on a particular political scenario, as it may not emerge from the electoral process. Had there been any inkling of the outcome of the May l999 elections, it is possible that the constitutional machinery for the formation of a cabinet might have been different. It will be interesting (though depressing) to see how the framers of the new Constitution provide for a similar electoral result. Can the electorate's choice be thwarted by constitutional devices; or will half the population simply be deprived of full civic rights?

One lesson for me is - Don't assume that smiling faces mean that people accept your principles. I knew and worked with Laisenia Qarase and other Senators who are now in the Interim Cabinet and they always gave the impression that they supported the work I was doing and were keen on the rule of law as expounded by me. It is uncomfortable to realise that my example meant nothing at all to these people when they were presented with the choice of supporting the lawful government or forming a new one of their own.

Another lesson for me is - Don't expect your advisory and drafting work to have any lasting impact in the countries where you work. There is I suppose some satisfaction in seeing one's Bills enacted as decrees of an Interim Cabinet; but I would rather they were enacted by a properly constituted parliament.

Legislative issues

Those who support the interim government often refer to various Bills which the People's Coalition were allegedly planning to push through Parliament contrary to indigenous Fijian interests (as if this justifies using armed force to overthrow Parliament itself.) In this context it should be noted that only a few minor Bills were passed in the latter half of 1999 and not a single Bill was passed in the 5 months up 19th May. Several Bills had been introduced, but they were awaiting passage in Parliament, and there was no pressure to get them enacted. It should also be noted that two of the Bills were to give certain lands back to the Native Land Trust Board. These were Bills which the SVT Government had sat on for several years as they were objected to by the NFP because they affected the security of tenure of Indian farmers and householders.

In an attempt to show good faith to indigenous Fijians the Chaudhry government decided to go ahead with the Bills - the Native Land (Amendment) Bill and the Native Land Trust (Amendment) Bill. It is notable that they are among the first decrees to have been issued by the Interim Government. The perceived problem with the Bills was a clause in the Native Land (Amendment) Bill to make it clear that when declaring native reserves, the President acts on the advice of the Cabinet. This clause was not necessary to the scheme of the Bill but seemed desirable given the longstanding confusion over the powers of the President in native land matters. The new Cabinet had agreed to the clause, but in subsequent discussions with the Native Land Trust Board the Minister for Fijian Affairs had agreed to delete it. It did not alter the law but only restated the position under section 96 of the l997 Constitution (which repeated provisions of earlier Constitutions) that the President acts on the advice of Cabinet unless the Constitution itself requires him to act on the advice of some other person or body. Unfortunately - but perhaps inevitably - this was misrepresented by the NLTB as a restriction on the powers of the President, which it clearly was not. The decree as made by the Interim Government omits that clause, but the law on the declaring of native reserves remains as I have stated it.

Another Bill which is cited as an excuse for an armed invasion of Parliament is the Constitution (Amendment) Bill 2000 which was presented as - and was intended to be - a tidying up exercise. There had already been one Act to amend the 1897 Constitution, early in 1995. The Bill for that was introduced by the SVT government and passed before the new Constitution came into force. SVT supporters conveniently forgot that Act when they attacked the Constitution (Amendment) Bill 2000 as inappropriate, premature, unnecessary etc. They also forget that most of the amendments in the new Bill were included in a Bill introduced by the SVT Government before it lost the elections in May 1999.

There were, it is true, a few new provisions in the 2000 Bill. One was an amendment to Section 96 - the section about the President acting on advice - which would have added words to enable some other law (i.e. other than the Constitution) to give the President power to act on the advice of some person or body other than the Cabinet. This would have meant that, for example, the Native Land Trust Board could have been given power, by an amendment to its Act, to advise the President on native land matters, which it has no statutory power to do at present. Needless to say, given the deliberate obfuscation on this topic in some quarters, this proposal was misrepresented as an attempt to undermine the power of the President, when it was in fact completely the opposite in intent and effect.

The other provision of the Constitution (Amendment) Bill 2000 which has been cited to justify an armed invasion of Parliament is the proposed amendment to Section 47(6)(a) of the Constitution. It would have replaced the word 'sessions' by 'meeting" which would mean that the Senate can hold up a Bill for 2 meetings of Parliament over a period of 6 months, but not for two sessions i.e. not for 2 years. This would reflect the normal practice and was not intended as a limitation on the power of the Senators appointed by the Great Council of Chiefs, but it was so represented by opponents of the government.

Another Bill which has been mentioned in this context is the Social Justice Bill. This was an attempt to implement the requirement in the Constitution for Parliament to legislate for programmes which might otherwise be discriminatory but which are intended to benefit all sectors of the community. The SVT government - perhaps wisely - left this thorny issue aside, but the Chaudhry government grasped the nettle and has been punished for doing so in a way not approved of by some indigenous Fijians. If every government which introduces a Bill which some sectors of the community do not like is to be thrown out by armed force, where is Parliamentary democracy safe?

Apologists for the interim government have mentioned several other Bills in the People's Coalition programme which allegedly challenged the authority of the chiefs and undermined indigenous rights, but no particulars are given and I cannot guess what they might be. One thing is certain - that there was nothing in the programme which undermined the democratic institutions of the State or which could not have been overturned by a democratically elected government after the next elections.

If there is to be an interim government for the next two years, it is to be hoped that no significant legislation will be passed, as the laws that are passed will not have been subject to parliamentary debate. One thing that working as a legislative draftsman teaches is that no Bill is perfect in draft; every Bill needs informed scrutiny and a Cabinet is simply not an adequate forum for that. The loss of critical scrutiny in Parliament, and the loss of the sector committees - an innovation of the 1997 Constitution that is another casualty of the coup - are sad blows to the quality of legislation in the Fiji Islands and thus in the South Pacific region.

What else has been lost

The events of 2000 have done irreparable ham not only to the economy of the Fiji Islands but also to the institutions and administration of the State. It was obvious when I began work in January 1998 that there was still much catching up needed in basic administrative skills. Many people in government attributed administrative failures to the loss of experienced personnel after the 1987 coups. In my own field of legislative drafting, there simply were not the people around who knew the laws governing their departments, or understood how a statute worked. During the 2 1/2 years I was there, things seemed to be improving; at least the Secretary General to Parliament and I between us managed to get a system going that ensured that Bills were published on time, sent to members on time and in due course Gazetted as Acts with all amendments and corrections included. I also had the opportunity to brief Permanent Secretaries on the preparation of legislation; but most of that is now irrelevant as Bills will not be Gazetted and will not be subject to parliamentary scrutiny.

The legislative programme which has been so violently interrupted included several Bills designed to improve the public life of the country. One was a Code of Conduct Bill, which would have established a structure to reduce the risk of corruption among politicians and senior public servants. Another was a Freedom of Information Bill which would have ensured access to government information for all members of the public. Both of these were contemplated by the Constitution but will presumably now never be enacted. More tragic is the loss of the Sustainable Development Bill which was the product of several years work and was an ambitious attempt to come to grips with the environmental problems of a developing country.

There is so much legislation that a country like Fiji needs; there is so much repairing of the gaps created by the 1987 coups still to be done; there are so many pressing developmental and social issues to be dealt with. Constantly interrupting the business of government for the sake of a perceived threat to indigenous rights just makes no sense. To use the language of the Commonwealth, it is simply not 'good governance.'

ldentity of the country

In this paper I have sometimes referred to 'Fiji' and sometimes to 'the Fiji Islands.' This is because there is and always has been confusion over the name of the country. In the context of tourism, 'Fiji Islands' has always been used as it has more allure, but the name of the country was 'the Republic of Fiji' until 27th July 1998 when it was changed to 'the Republic of the Fiji Islands' by sections 1 and 193 of the 1997 Constitution. The reason for the change was to establish a common name for all citizens of the country - Fiji Islanders. This term would embrace Indians, Chinese, Rotumans, other Pacific island races and Europeans, as well as indigenous natives. It would leave the word 'Fijian' to connote an indigenous native and was consistent with the use of the word 'Fijian' in such laws as the Fijian Affairs Act. It was a noble aspiration but was doomed to failure from the start, as few people understood the reason for the change, and many people did not even know of it at all. The only consistent attempt to promote the use of 'Fiji Islands' came from the law drafting division, abetted by the Revenue and Customs Service and a couple of other statutory bodies. The enacting formula for Acts was changed to 'Enacted by the Parliament of the Fiji Islands' and the Government Gazette adopted the correct title. But stamps and coins still said 'Fiji' as did the shirts of national sports teams.

In fact, the confusion over the name of the country is even worse than this. The military forces never really dropped the title 'Royal Fiji Military Forces' even after Fiji became a republic in 1987 and the police still called themselves 'the Royal Fiji Police Force'. The Queen's head continued to appear on notes and coins even though the Queen has not been the head of state since 1987. All this could be regarded as quaint and whimsical, except that it points to a serious malaise in the sense of identity of the country and a sense of division between the 'real' Fijians and the rest. It is significant that the military administration was quick to revert to 'Fiji' for the name of the country after taking power in May 1999 - but the Government Gazette is still sent out in wrappers marked 'Fiji Islands' and the Aviation Security Regulations recently issued referred to the Civil Aviation Authority of the Fiji Islands!

Of course the country can call itself whatever it wants to - though preferably not 'The Fiji Islands' as if the definite article were part of its name - but whatever the name, it should be used consistently in Legislation and official titles. One thing should be ended now, however, and that is the use of the Queen's head on coins and currency notes. Why should Her Majesty be associated with the currency of a country that has twice overthrown an elected government by force and deposed her appointed representative?

Was the Constitution to blame?

It has been said by apologists for the interim government that the 1997 Constitution was to blame for the events of May 2000. This ignores the fact that a Constitution does not come into being of its own accord; it has to be enacted through the parliamentary process. The 1997 Constitution was a product of more consideration than many such documents; the country had had several years in which to decide what it wanted, and the Reeves Commission did not produce its report out of thin air. To criticise the 1997 Constitution as too complex or as not responsive to indigenous aspirations is to admit that people did not read the report properly or at all and that Parliament enacted a document without knowing what it was doing. This is an indictment, not of the Constitution, but of parliamentarians and politicians in Fiji. What were these people thinking of , allowing legislation they did not agree with to be unanimously adopted?

It has also been said that the Westminster style of Cabinet government is not suitable for Fiji; but no-one has suggested a feasible alternative. If for example the country is to be governed by the Great Council of Chiefs, who will decide on its composition? Will chiefs who are not in the Council accept their subordinate role? Will the Council's role merely be to appoint a President who in turn appoints a Prime Minister and Cabinet, or will it expect a role in the running of the country? If the chiefs are to take a hand in government, will the present system of designating chiefs continue to be acceptable to villagers? Can that system work in an urban context? Above all, how can the disenfranchisement of non-indigenous citizens be justified? It is not the Westminster model that the critics complain of; it is the concept of Indo-Fijians having political power. They are welcome to remain in the country, but should remain as girmitya, working for the Fijians rather than the British and Australians.

Perhaps the most compelling argument for saying that the 1997 Constitution was not to blame for the events of May 2000 is the fact that very few people actually read it. It was supposed to be translated into both the Fijian and Hindustani languages - see section 4(2) - but no steps were taken to do that by the SVT government. There were not even any explanatory leaflets in Fijian put out by the Government that I was aware of, although a major publicity campaign was launched when the Constitution came into force. The Citizens' Constitutional Forum arranged for extracts from the Constitution to be published in the Fiji Post every week, in English; I do not know if Fiji language newspapers carried extracts as well. There was certainly no translation work on the Constitution done by the legal department while I was there. How is it then that indigenous Fijians are said to be upset about provisions in the Constitution?

Caribbean perspective

Seen from Grenada the events of this last summer in Fiji are totally incomprehensible. Grenada went into independence in a state of internal strife, whereas in Fiji it was welcomed by all sections of the community. In March 1979 the New Jewel Movement under Maurice Bishop mounted a coup against the Eric Gairy government and ruled as the People's Revolutionary Government until October 1983. In-fighting in the cabinet led to Bishop and several cabinet colleagues being executed by firing squad, which was followed by an armed intervention led by U.S. troops at the request of the then Governor-General, Sir Paul Scoon. A new civilian government was soon established, elections followed, and Grenada has been on a democratic path ever since. The Constitution of 1974 is still the constituent document of the State and although a review has been proposed, there are no calls for major changes.

People here know what damage the events of 1979 to1983 did to the economy of the country, to its overseas reputation and to its administrative systems. They cannot understand why a small country like Fiji would want to destroy itself for a second time. It is true that the concept of 'indigenous rights' does not enter the equation here, but the fight for the rights of workers and for national identity is just as vociferous. People here wonder why the normal political process cannot be used to address the problems in Fiji. They are also surprised that the Commonwealth, European Union and other aid donors seem ready to continue to help Fiji even when the country has only itself to blame for its present problems.

Role of the Courts

From a constitutional lawyer's point of view, one of the saddest features of the whole affair is the readiness of the senior judiciary to bend to the will of the military administration at a very early stage. There seems to have been an implicit acceptance that the so-called and very dubious 'doctrine of necessity' applied to the decrees of the military administration, without any attempt to attach conditions or make it temporary pending release of the hostages. The Chief Justice reportedly not only supported the Military Government but set about abolishing the Supreme Court (the final appellate court on which mostly overseas judges sat). This was an act which had no relevance to the aspirations of the indigenous Fijians and was probably not even asked for by them. In what way does it advance their interests? All it does is ensure that no tribunal will be able to query decisions of the Court of Appeal. One wonders what view that court - also composed of outsiders - will take of the abolition of the Supreme Court.

The courts have been further reduced to puppets by the response of the interim government to a challenge in the High Court as to the legality of the government. So far from arranging to have the application heard as speedily as possible, the Attorney General (my predecessor as First Parliamentary Counsel) has reportedly said that there is no prospect of the case being heard until about 2003 ! This appears to be a cynical piece of manipulation by a law officer of a Commonwealth country and should be brought to the attention of the Commonwealth Law Ministers and the Commonwealth Judges and Magistrates' Association. It is further proof of the ineffectualness of the courts to uphold constitutionality in the Commonwealth - a subject on which I spoke at the Commonwealth Law Conference in Kuala Lumpur last year and which I hope will be explored further in Zimbabwe in 2001.

Conclusion

George Speight and his accomplices are now on Nukulau Island awaiting trial on treason charges. Meanwhile, a group of people - mostly of chiefly rank - are purporting to act as an Interim Civilian Government, having been appointed by the President, Ratu Iloilo. The President was appointed by the Great Council of Chiefs after Sir Kamisese Mara resigned. The appointment of Iloilo by the GCC was not in accordance with the 1997 Constitution as section 90 requires the appointment to be after consultation with the Prime Minister. President Mara had appointed Ratu Momoedonu as acting Prime Minister under section 106, which he could properly do as Chaudhry was at that time held prisoner in the Parliament compound by the Speight gang. But there is no record of the GCC having consulted Momoedonu on the appointment of Iloilo as President.

A more serious constitutional breach was the appointment by the President of a Prime Minister (Laisenia Qarase) and a cabinet without any reference to the constitutional requirements. The cabinet should be drawn from the members of Parliament and the Prime Minister should be someone who, in the President's opinion, can form a government that has the confidence of the House of Representatives. The Interim Cabinet can claim no mandate from the people it purports to govern and is in fact no more lawful than was Speight's invasion of Parliament.

One answer made to this is that the appointment of the Interim Cabinet did not need to comply with the Constitution, since that had been abrogated by the Military Government. (In fact, the Military Decree used the phrase 'is hereby removed' which is rather odd.) No-one has explained why, if the main task of the army was the restoration of law and order, it was also necessary to remove the Constitution and to abolish Parliament.

There is another, equally surreal, answer which has been enunciated more than once by Ratu Inoke Kubuabola, the leader of the SVT party and now Minister of Information in the Interim Cabinet. It is that in Fiji there is a more fundamental law than that of the Constitution; it is the traditional role of the Great Council of Chiefs under which the Constitution can be abrogated at any time if necessary. This ignores the fact that the Great Council of Chiefs did not exist until created by the British colonial administration; that the chiefs were not even united in the decision to cede Fiji to Queen Victoria in 1874; and that the Council has shown many signs of division in recent years. The Interim Cabinet is by no means unanimously supported by the chiefs, and all the signs are that Fiji will split apart at the seams, not between the races, but between Fijians themselves.

There is now in place a de facto government which is taking steps to prosecute the coup leaders for treason, but at the same time is riding on the backs of the traitors by drawing salaries and exercising powers as if lawfully appointed. Arguably, every current Minister is an accessory after the fact to treason, but that point has been lost sight of in the desire to ensure that real political power is held only by indigenous Fijians for the indefinite future. For many people, the main joy of living in the Fiji Islands was the mix of Fijian, Indian and Chinese cultures as well as other Pacific cultures - Rotuman, Gilbertese, Polynesian. The fact that all these races appeared to live and work harmoniously together constituted the country's chief asset. This has now been virtually destroyed by the insistence that Fiji is mainly for the Fijians. If this view is allowed to prevail, the country will be so much the poorer, whatever the constitutional arrangements under which it is governed.

Diplomats are quoted as saying they have to deal with the realities of the situation which are that Qarase and his administration are in fact in control. As a constitutional lawyer I maintain that the interests of Fiji would be better served by insisting on a return to lawful government, i.e. an appointment of a Prime Minister under section 90 of the 1997 Constitution, the formation of a Cabinet drawn from the Parliament which was elected in May 1999, and the re-convening of that Parliament as soon as possible. Any other solution would be a betrayal of the rule of law and a betrayal of all the people of Fiji. The people of Burma (Myanmar) have been betrayed by the generals. Please God let the people of the Fiji Islands not be betrayed by their chiefs.

© John F. WILSON

29 September 2000

St. George's, Grenada, West Indies.