To those who take every opportunity to degrade, to tear down our institutions of democracy, and perpetuate the narrative that the charter of rights and freedoms enshrined in the supreme law of the land is nothing but a fanciful facade, the Constitution Day is a reminder of the perilous path to substantive equality for a country like Fiji that is emerging out of the detritus of institutionalized racism and
structural inequality.

The commemoration of this day serves as an antidote to the social amnesia or willful
forgetfulness that afflicts so many of our politicians, some of whom have gone to the extent of stating that should they form government, this day of celebration will be abolished as a national holiday.

Ironically, these very individuals that consciously deride the Constitution fail to recognize the fact that this is the same document that affords them and all Fijians the power to publicly differ on domestic laws, government policies and exercise their right to free speech and opinion in the mainstream media within the permissible bounds of the law.

It is the same document that guarantees the independence and impartiality of the
prosecuting authorities and the Judiciary to safeguard the operable parameters of power
by placing a limitation on its arbitrary use and exercise.

Politicians contesting 2 general elections

While some of these politicians incessantly allege that this document has been imposed
on Fijians, they cannot deny the fact that they have contested two general elections
and those who have made it to Parliament have taken an oath or provided an affirmation to obey, observe, uphold, and maintain this very Constitution.

They continue to selectively apply provisions of the Constitution as and when it suits them, and some have instituted court proceedings on the strength of the same Constitution that they find so abhorrent and an anathema to the values of rule of law, human rights, and democracy.

The 2013 Constitution marks a radical departure from the constitutions of the past in one significant sense.

While removing the ignominy of institutionalised racism, it does not pretend that ethnic diversity does not exist as has been claimed by its critics.  The notion of equality is not pitted against identity politics as was the case in the previous constitutions that promised equality in their respective bills of rights but paramountcy of the interests on one community over others in its preamble whether it be the morally repugnant 1990 Constitution or the facade of multiracialism touted under the 1997 Constitution.

Afterall, the 2013 Constitution in its Preamble recognizes the various ethnic communities that strengthen the fabric of the nation while coetaneously committing to an array
of fundamental human rights and human dignity. It does not keep the two diametrically opposed in the interests of political gain.

Those who are advocating for the Fijian Constitution to regard equity over equality fail to understand that this would once again take Fiji back to its dark days when
votes were cast, academic scholarships were distributed, and development programs and
policies designed including socio-economic benefits were all along ethnic lines.

Preferential framing of competing rights and justifiable limitations

There is very little acknowledgement that the 2013 Constitution effectively addresses the problem of preferential framing, the privileging of one set of rights over another, where competing rights are at play such as freedom of expression and the right to be free from hate speech, through the principles of constitutional interpretation.

The plethora of rights guaranteed under the Constitution mirrors the rights and freedoms enunciated under international human rights treaties and conventions and consistent with international human rights law, our Constitution too places limitations to freedom of speech, expression and publication, freedom of assembly and freedom of association. These limitations are prescribed by law and not arbitrary.

The criticism leveled against the 2013 Constitution is that limitations to these constitutionally guaranteed rights and freedoms render these rights “meaningless for citizens and optional for Government”.   It has also been claimed that while the 1997 Constitution required limitations to fundamental rights and freedoms to be “reasonable and justifiable in a democratic society” and section 43(2) required Court to apply the Oakes Test when interpreting the Bill of Rights, that this safeguard is conspicuously missing from the 2013 Constitution. This assertion is incorrect.

It is imperative to note that limitations to these rights are not peculiar to the 2013 Constitution. In fact, limitations were placed on freedom of expression under section 30(2) of the 1997 Constitution on the grounds of national security, public safety, public order, public morality, public health, the right to be free from hate speech and the right of persons injured by inaccurate or offensive media reports to have a correction published on reasonable conditions established by law.

Similarly, the 1997 Constitution placed limitations on freedom of assembly under section 31 (2) and freedom of association under section 32 (2).

The principles of constitutional interpretation under section 3(1) under the 2013 Constitution expressly provides that the interpretation of the Constitution must promote “the values that underlie a democratic society based on human dignity, equality and freedom” and crucially, where a law appears to be inconsistent with the Constitution, the Constitution places an important obligation on the court to adopt a reasonable interpretation of the law that is consistent with the provisions of the Constitution over an interpretation that may be inconsistent.

This is an important safeguard in a democratic society. Section 7 (1) (a) and (b) once again places an important obligation on the court, tribunal or any other authority to promote the values that underlie a democratic society based on human dignity, equality and freedom as well as consider the application of international law applicable to the protection of rights and freedoms.

Section 7(3) places a further safeguard that where a law limits a right or freedom guaranteed under the Constitution, that law is not invalid solely because it exceeds the limits imposed by the Bill of Rights if the law is reasonably capable of a more restricted
interpretation that does not exceed those limits and in that case the law must be construed with the more restricted interpretation.

This meets a crucial requirement of the Oakes test that we interpret rights broadly and limitations narrowly. Section 7(4) requires the court to develop common law in a manner that respects rights and freedoms and addresses the fundamental problem of preferential framing under section 7 (5) which requires that in the application of the Bill of Rights to any law, a court must interpret the Bill of Rights contextually, having regard to the content and consequences of the law, including its impact upon individuals or groups of individuals.

This is also why the assertion by some that the 2013 Constitution does not meet the Siracusa Guidelines is absurd. If indeed the 2013 Constitution does not meet the Siracusa Guidelines then neither does international human rights law such as the ICCPR given that rights, freedoms, and its attendant limitations in the 2013 Constitution are derived from the latter and by that logical extension, the 1997 Constitution would have failed the Siracusa Guidelines too.

Emergent and intractable human rights challenges and our Constitution

Instead of making inane remarks about removing the Constitution Day as a national holiday, I had hoped that commentators on the Constitution would have assumed a much more constructive approach about how the provisions of our Constitution can be used to address the most intractable and emergent human rights challenges facing our country.

There is little discussion, for instance, over the fact that freedom of speech, expression and publication can be limited on the grounds of public health. What are the thresholds for freedom of expression in a democracy? Have we done enough to develop jurisprudence in this area?

Have we done enough to address the advocacy of hatred on the social media that flourishes so freely under the guise of free speech? I hardly see any politician condemning that until they are publicly shamed.

The fact that there is a rise in intolerance based on race, religion, gender, ethnicity, sexual orientation amongst other prohibited grounds of discrimination is not an indictment of our Constitution.

It is a sad indictment that we are failing as a society in upholding the rights and freedoms of others as we selfishly exercise ours.

What are the alternative models of peaceful assembly? When is the invocation of public order justifiable? If we did not tear institutions apart at every opportunity we get in our zeal to show that nothing is working, we can constructively work through many of these issues despite our political differences.

While there is media fanfare when the elite in our country are taken in for questioning by law enforcement agencies to demonstrate how our Constitution is a fable, ordinary citizens of this country have quietly taken matters to court for the alleged interdiction of their constitutional rights and sought remedy through the courts.

The Human Rights and Anti-Discrimination Commission has instituted legal proceedings and appeared as amicus curiae in court to uphold human rights, ensuring appropriate redress or remedies are afforded to the victims of human rights violations.

Some examples:
– The Commission instituted proceedings in the High Court after investigating a com-
plaint of arbitrary detention of a ten-year-old in a police station. The child was award-
ed $25,000 by the High Court of Fiji.

In another matter, a complainant was paid $40,000 in an out of court settlement initiated by the Commission for being arbitrarily detained. The Commission has instituted proceedings in the restitution of:

– Rights of arrested and detained persons and in particular the unlawful detention of
children

– Freedom from cruel and degrading treatment

– Rights of accused persons

– Right to Freedom from Arbitrary Eviction

– Rights of Children
– Access to Courts or Tribunals
– Rights to Life

In a country where there is constant criticism that the State is privileging social and economic rights over civil and political rights, we are now compelled to rethink these binaries and issues of justiciability where the “progressive realization” of social and economic rights is increasingly under strain in the context of the pandemic with unprecedented levels of job losses, pov-
erty and the implosion of our social security schemes.

There is hardly any constructive discussion about section 7(5) of the Constitution in relation to the debate about vaccinations. Or indeed about the vertical and horizontal application of the Bill of Rights in the context of Covid-19, climate change, and human trafficking.

Therefore, it is not enough to regurgitate accepted dogma about our Constitution and lugubriously contemplate how to change it.

Why change something that you have not really put to test in the first place?
We must think critically and fight within the constructs of our Constitution to address the aperture between the aspirations in our Constitution and resuscitation of rights and freedoms under strain.

* Ashwin Raj is the Director of Fiji’s Human Rights and Anti-Discrimination Commission.