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Fiji’s New Constitution

by Sosefo Inoke

I am writing this article to generate some discussion on the Constitution review process that is happening now in Fiji.  At the moment I am not aware of any such discussions as to what the Rotumans will submit, collectively or individually, so can someone enlighten us on what is going on?  Time is short and we should wait not wait or say nothing until after the new Constitution is in place.

I will limit my article to the issues that I believe concern the Rotumans.  Here are my brief thoughts for what they are worth.

One of the significant differences between the 1997 Constitution and the Peoples’ Charter is the voting system.  The 1997 Constitution allowed communal voting, in which voters select their lower house representatives along racial lines.  Thus, Rotumans throughout Fiji and elsewhere who are eligible to vote, elect a Rotuman as their representative.  Under the Charter, however, all eligible voters vote for their representatives determined by where they live, irrespective of their race.  So if this voting system becomes law under the new Constitution, depending on which electorate Rotuma falls in, candidates  of different races in that electorate can stand for election and become the lower house representative for Rotuma.  That representative may not be a Rotuman.  In saying this I am not in any way expressing a view as to whether it is a good thing or not.  This is one of the issues which Rotumans should be discussing now and preparing their submissions to the Constitution Review Commission.

My own personal view is that it should not be an issue for the Rotumans.  The issue for us is the protection of Rotumans rights as a minority indigenous race, our island and its waters, and our customs and traditions. The 1997 Constitution goes some way toward affording such protections.  But are they enough?  If not, then we should articulate them now.

Some people argue that Rotumans should not be entitled to special protection over and above all other minorities, like the Banaban people.  I think that argument ignores the history and legalities of the cession of Rotuma to the British Crown as a colony in its own right.

Incidentally, my view is that the Rotuma Deed of Cession did not hand over our island and its waters to the British Crown.  Our forefathers only handed over the right to be governed by the Crown.  Rotuman ownership rights of the land, waters and minerals remained intact.

One of the very sensitive issues is land tenure of Rotuma lands.  Recently, we had a commission look into a review of the Rotuma Act and Rotuma Lands Act.  Does anyone know what the outcome was or is?

I, like many Rotumans, objected very strongly to changing our land tenure according to Rotuman customs and traditions to a patriarchal system.  Fijians, or iTaukeis as they are now called, own their land according to their customs and traditions under the 1997 Constitution.  There is no reason why a similar provision could not be put in the new Constitution for the Rotumans.  That would safeguard us against the government passing laws to change it by a simple majority without having to change the Constitution.  Such a provision would make the offending provisions in the Rotuma Lands Act unlawful and unenforceable.

Secondly, I would also suggest that the new Constitution should have a provision that Rotuman land tenure could only be changed if the Rotumans approve it.  That also raises another question.  Are the Rotumans living in Rotuma the only ones who should have a say in such a change?

Since the 1987 coup, much has been said about the “independence” of Rotuma from Fiji.  It is a sensitive issue and we are divided both as to the “idea” and as to its “form”.  Whatever form it might eventually take, the idea should be provided for in the new Constitution.  A window of opportunity should be left open for it.  The idea may never come to fruition but it should not be shut out.

These are some of the issues which I believe we should be discussing now so that we have a meaningful input to the new Constitution consultation process. 

Submitted 25 May 2012

Sosefo's submission to Constitutional Review Committee (submitted 21 August 2012)

Response by Henry Enasio  (submitted 8 June 2012)

James Rafoi's submission to Constitutional Review Committee (submitted 18 September 2012)

Henry Enasio's submission to Constitutional Review Committee (submitted 28 September 2012)

Comment by Margaret Enasio (submitted 28 September)

Comment by Tomasi Taukave (Letter to the Editor of the Fiji Sun, 17 February 2013)

Response to Tomasi Taukave by Antonio Muaera (submitted 17 March 2013)

Regarding Fiji's Draft Constitution, I cannot help but notice the following:

1.  The rights of the indigenous peoples of Fiji and Rotuma are not expressly recognised in this proposed Constitution. I could not find a single reference to us in the Bill of Rights chapter of the Constitution or any where else in the document.

2.  The Great Council of Chiefs for iTaukei Fijians and the Council of Rotuma and other indigenous administrative institutions are not mentioned so they probably will not exist once this Constitution becomes law, and indications are that it will be the supreme law in Fiji before the 30 September 2014 elections.

3. Similarly, the Rotuma Act and the Rotuma Lands Act are not protected. They can be amended and even repealed by the new parliament by a simple majority. There is no obligation to consult the Council. And there is nothing to stop the new parliament by a simple majority from passing a law to transfer ownership of Rotuma lands and waters to the State. The same goes for iTaukei lands. As an aside, there is a proposed Decree to allow deepwater seabed exploration in Fiji which includes Rotuma and royalties are to be paid to the State (government). There is no requirement for consultation with the Council.

4.  For elections, Fiji is divided into 4 Divisions. Rotuma is in the Eastern Division. The Rotumans in Rotuma will vote in the Eastern Division for the 4 seats allocated to that Division. The other Rotumans will vote in the Divisions in which they live. There is nothing to stop Rotumans standing for elections in all Divisions of course but obviously their primary responsibilities will be to the people in their respective Divisions.

5.  Rotumans, like everyone else, will be Fijians. I do not know whether we will be allowed to refer to ourselves as Rotumans without being prosecuted for some obscure criminal offence.

6.  The Council's submissions to the Yash Gai Commission have not been taken up at all in this Constitution.

People are given till 5 April 2013 to put their views to the government.

(submitted 21 March 2013)

Sent by Sosefo Inoke (29 April 2013)

This is what the paramount chief of Rewa, Ro Teimumu Kepa, said to the solicitor general of Fiji and the government about the regime's 2013 Constitution in regards to indigenous rights:

"...We are seriously concerned with the removal of the entrenched legislations that safeguard the indigenous institutions, resources, tradition and culture as well as the protection and the rights of the Rotumans and Banabans. .."

The full text of her letter is available on various sites on the net. It is recommended reading because we all should be concerned.

The serious concern arises out of the ease with which all such laws could be changed.

Under the proposed 2013 Constitution, any Bill (proposed Law in layman language) can be passed by a majority of members of parliament sitting and a majority of them voting for the Bill. That is the same for all laws including those to change the Rotuma Act and the Rotuma Lands Act.

The proposed parliament is to consist of 45 members (previously 71). That means you only need 23 members to be present and 12 of them to vote for the change. The Bill must then be presented to the President for assent (i.e. signing signifying approval). If the President does not give his assent after 7 days, the Bill becomes law automatically.

Under the 1997 Constitution, the majority of the members of parliament (in both the House of Representatives (71) and the Senate (32)) must vote for the change. In addition 9 of the 14 members appointed by the Bose Levu Vakaturaga (BLV) must also agree to the change. Then the President will only give his assent if the Secretary General of Parliament presents him with a certificate that all requirements have been met. The quorum required is 24 and 12 respectively for both Houses. So the minimum number of votes to change the Rotuma Act and Rotuma Lands Act under the 1997 Constitution is 13 in the House of Representatives and 7 in the Senate (20 total) AND 9 of the 14 BLV appointed Senators must vote in favour of the change. Because of the latter requirement, the actual minimum number of votes was 22, compared to 12 under the proposed 2013 Constitution. These requirements ensured that it was more difficult to change laws affecting indigenous people under the 1997 Constitution (entrenched) compared to other laws. These requirements do not exist under the proposed 2013 Constitution.

The other concern is that these changes can be made without the government having to consult and get the informed approval of the indigenous people.

Note that the approval of the Council of Rotuma or its appointee Senator was not required under the 1997 Constitution. I do not know whether this was deliberate or an oversight but it should be corrected. All you aspiring Rotuman politicians, if and when the 1997 Constitution is reinstated, please ensure that this is corrected. In any event the telling difference is that under that Constitution, the Rotumans had a voice through its two representatives in parliament. Under the proposed electoral system Rotuman representation is not guaranteed.

The other significant differences between the 1997 and the 2013 Constitutions with respect to indigenous rights are these. The 1997 Constitution specifically required "...Parliament (to) make provision granting to the owners of land or of registered customary fishing rights an equitable share of royalties or other moneys paid to the State in respect of the grant by the State of rights to extract minerals from the land or the seabed". The 1997 Constitution also required Parliament to have regard to the customs, traditions, usages, values and aspirations of the Fijian and Rotuman people. Put simply, the 1997 Constitution required the government to give to the Fijian and Rotuman people an equitable share of royalties from the mining of their lands and seabed and to recognise their traditional and customary practices.

The 2013 Constitution recognises neither.