Constitutionalising Affirmative Action in the Fiji Islands

Abstract

The Fiji Islands are a society deeply divided in ethnic terms, especially between indigenous Fijians and Indo-Fijians, and also characterised by disadvantage and poverty in most communities. Various forms of affirmative action have been pursued, mostly in favour of indigenous Fijians who are not a disadvantaged minority, as in many states with significant affirmative action programmes, or the victims of discrimination. However, there is a perception on the part of the indigenous community that they are disadvantaged especially in relation to the Indo-Fijian community. The 1997 Constitution sought to mandate a more even-handed approach to affirmative action, but implementation was affected by a coup in 2000. After a brief theoretical discussion of the consequences of affirmative action in an ethnically mixed society, particularly regarding identity, this paper analyses the provisions of the Constitution, and discusses the problems of taking this type of approach to affirmative action. The discussion is placed in the context of the record of affirmative action programmes in Fiji itself, as well as of the background of Fijian society including the tensions between tradition and market, and of the whole issue of whether affirmative action is an appropriate way to producing greater social justice and harmony in society.

Acknowledgements

The Authors were active in the process that led to Fiji's 1997 Constitution. They also advised the government of Fiji in 2000 on the implementation of affirmative action policies. Yash Ghai's research has been supported by the Distinguished Researcher Award of the University of Hong Kong.

Notes

1. Article 153(2) of the Constitution of Malaysia provides that ‘the [government] shall exercise [its] functions under this Constitution and federal law in such manner as may be necessary to safeguard the special provision of the Malays and natives of any of the States of Sabah and Sarawak and to ensure the reservation for Malays and natives of any of the States of Sabah and Sarawak of such proportion as he may deem reasonable of positions in the public service … and of scholarships, exhibitions and other similar educational or training privileges or special facilities given or accorded by the Federal Government and, when any permit or licence for the operation of any trade or business is required by federal law, then, subject to the provisions of that law and this Article, of such permits and licences’.

2. Article 15(2) and 16(4) permit respectively ‘special provision for women and children’ and ‘reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State’. More positive obligations are imposed on the state by article 46 which requires it to ‘promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and Scheduled Tribes’ and to ‘protect them from social injustice and all forms of exploitation’. A fixed proportion of seats are, in general, reserved for these two groups in the national (Art. 330) and state legislatures (Art. 332) in proportion to their presence of the population (articles 325, 330–34).

3. In the United States affirmative action was introduced by an Executive Order of the President, although today its primary basis is statutory; for example, the Small Business Act requires that contracting with small companies be given publicity – this is to encourage others to emulate the government.

4. Well-known American examples include the Bakke case (Regents of the University of California v. Bakke 438 US 265 (1978), and the more recent cases of Gratz v. Bollinger 539 US 244 (2003) and Grutter v. Bollinger 539 US 306 (2003). See Marc Galanter's aptly entitled study of Indian provisions and experience of affirmative action, Competing Equalities: Law and the Backward Classes in India (Berkeley, CA: University of California Press 1984).

5. As Galanter (ibid. p.28) writes: ‘Untouchability (and the excesses of caste hierarchy) presented a problem whose solution was required to unlock India's national destiny.’

6. There is now an enormous literature on this, sparked off in part by the writings of Charles Taylor, including ‘The Politics of Recognition’, in Amy Gutmann (ed.), Multiculturalism and the Politics of Recognition (Princeton, NJ: Princeton University Press 1991), and Will Kymlicka, including Liberalism, Community and Culture (Oxford: Clarendon Press 1989), and by the political campaigns and struggles of indigenous peoples and ethnic communities.

7. Nancy Fraser, ‘Rethinking Recognition: Overcoming Displacement and Reification in Cultural Politics’, New Left Review, Vol.3 (2000), p.107.

8. Iris Young, ‘Unruly Categories: A Critique of Nancy Fraser's Dual Systems Theory’, New Left Review, Vol.222 (1997), pp.147, 159.

9. See Kymlicka (note 6).

10. Canada (other than for aboriginal and francophone communities) and Australia follow this approach. In Australia the Public Service Act 1999 (Commonwealth) provides that a public agency head must establish a workplace diversity programme to assist in giving effect to the Australian Public Service (APS) Values, which include employment decisions based on merit; freedom from discrimination; and recognising and utilising the diversity of the Australian community which it serves; promoting equity in employment; and providing a reasonable opportunity to all eligible members of the community to apply for APS employment. In Canada, the Employment Equity Act provides for the benefit of members of the First Nations (aboriginal peoples); women; visible minorities; and persons with disabilities. Governmental departments and agencies must determine the representation of the four designated groups in their organisation and compare the results with the availability of these groups in the Canadian workforce. Where under-representation is found, a review of employment systems, policies and practices must be conducted to identify potential barriers. A plan, developed in consultation with unions and employees, then representatives, must be prepared that will ensure reasonable progress in attaining a fair degree of representation of the designated groups in each occupational category.

11. In India, the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act 1996 requires government at all levels to institute schemes for allocation of land at preferential rates for housing for people with disabilities. It also provides for them free education up to the age of 18; special schools; part-time classes if necessary; special transport; restructuring of curricula; scholarships; and removal of architectural barriers. India also provides quotas for the ‘scheduled tribes’, ‘scheduled castes’, and ‘other backward classes’, under which members of these classes can enter institutions of higher education with lower examination grades. Malaysia has a quota system under which admissions to places for Indian and Chinese Malaysians in national educational institutions are restricted in order to benefit Malays.

12. At least this was the colonial orthodox view. For our present purposes, it is sufficient to note that this view prevailed, with far-reaching consequences both internally within the indigenous communities and their relations with others. See Peter France, ‘The Founding of an Orthodoxy: Sir Arthur Gordon and the Doctrine of the Fijian Way of Life’, Journal of the Polynesian Society, Vol.77, No.1 (1968), pp.6–32; Peter France, The Charter of the Land: Custom and Colonisation in Fiji (Melbourne: Oxford University Press 1969).

13. See Brij Lal, Broken Waves: A History of the Fiji Islands in the Twentieth Century Honolulu: University of Hawaii 1992), for an outstanding study of Fiji's history.

14. The negative impacts of this sort of policy are stressed by Carmen M. White, ‘Affirmative Action and Education in Fiji: Legitimation, Contestation and Colonial Discourse’, Harvard Educational Review, Vol.71, No.2 (2001), p.240, citing A. F. Mamak, ‘Pluralism and Social Change in Suva City, Fiji’ (unpublished PhD dissertation, University of Hawaii 1974).

15. For further details see Jill Cottrell and Yash Ghai, ‘Constitution Making in Fiji: Context and Process’ (Stockholm, International Institute of Democracy and Electoral Assistance 2004), http://www.idea.int/conflict/cbp/upload/CBP-Fiji.pdf (accessed 5 October 2006).

16. The Great Council of Chiefs (GCC – often now known by its Fijian name of Bose Levu Vakataraga or BLV) was something of a colonial creation.

17. Reeves et al. (hereafter ‘Reeves’), ‘Towards a United Future: Report of the Fiji Constitution Review Commission’, Parliamentary Paper No.34 of 1996 (Suva: Parliament of Fiji 1996).

18. From the United Nations Development Programme (UNDP), Fiji Poverty Study, http://www.undp.org.fj/HTMLpercent20docs/Povertyper cent20Reduction.htm (accessed 5 October 2006).

19. See for example Vincent D. Nomae et al., Poverty Amongst Minority Melanesians In Fiji: A Case Study of Six Settlements in Suva, http://www.usp.ac.fj/fileadmin/files/schools/ssed/economics/working_papers/2004/wp2004_15.pdf (accessed 5 October 2006).

20. Kalivati Bakani, General Manager of the Native Land Trust Board, in What are Good Land Policies for Fiji in the 21st Century? National Land Workshop Report (Suva: Citizens' Constitutional Forum 2002), p.10.

21. Steven Ratuva, ‘Anatomizing the Vanua Complex: Intra-Communal Land Disputes and Implications on the Fijian Community’, paper presented at conference on South Pacific Land Tenure Conflict Symposium, University of the South Pacific, Suva, Fiji, 2 April 2002, http://www.usp.ac.fj/fileadmin/files/Institutes/piasdg/governance_papers/ratuva_vanua.pdf (accessed 5 October 2006). Ratuva cites for the figures J. Kamikamican and T. Davey, ‘Trust on Trial: The Development of the Customary Land Trust Concept in Fiji’, in Y. Ghai (ed.), Law, Government and Politics in the Pacific Island States (Suva, Fiji: Institute of Pacific Studies 1988), p.289, though there the figures are slightly different.

22. Ratuva (note 21).

23. Ministry of Finance and National Planning, 20-year Development Plan (2001–2020) for the Enhancement of Participation of the Indigenous Fijians and Rotumans in the Socio-Economic Development of Fiji, Parliamentary Paper No.73 of 2002, para.2.3.6.

24. Ibid. para.8.69.

25. Bakani (note 20) p.90.

26. Government policies to return government-held land to Fijian communities has raised this figure from about 83 per cent in recent years.

27. These points came out in the Land Workshop Report, (note 21).

28. Between 1997 and 2001 only 27.6 per cent of the expired leases were renewed. Of these 20.1 per cent were sugarcane leases, 4.3 per cent were other leases including other agricultural crops and commercial leases, and 3.2 per cent were residential leases. About 45 per cent of the land of which leases had expired has been given to new tenants and about 30 per cent has not been allocated.

29. Ministry of Finance and National Planning (note 23) section 2.8 Table 2.5.

30. Ibid. Table 2.6.

31. Mahendra Reddy and Biman C. Prasad, ‘Affirmative Action Policies and Poverty Alleviation in Fiji: An Examination of Post-Coup Policies and Programmes’, Development Bulletin No. 60 (2002), http://devnet.anu.edu.au/db60pdfs.php (accessed 5 October 2006).

32. Personal information.

33. 30 June 1997, p.567 (in the debate on the Constitution, Parliament of Fiji, Parliamentary Debates, House of Representatives).

34. See Solrun Williksen-Bakker, ‘Fijian Business – A Bone of Contention: Was it One of the Factors Leading to the Political Crisis of 2000?’, Australian Journal of Anthropology, Vol.13 (2002), p.72.

35. This point is made by the government itself: Ministry of Finance and National Planning (note 23) para.2.3.9.

36. Ibid.

37. See Abdul Hassan, ‘A Preliminary Study on the Supply of Low Cost Housing in Fiji’, Pacific Rim Real Estate Conference, University of Melbourne, January 2005, http://www.prres.net/index.htm? http://www.prres.net/Proceedings/2005proceedings.asp (accessed 5 October 2006).

38. Ibid.

39. S. Ratuva, ‘Ethnic Politics, Communalism and Affirmative Action in Fiji: A Critical and Comparative Study’ (PhD Dissertation, University of Sussex 1999) ch. 6.

40. Helen Tavola, Secondary Education in Fiji: A Key to the Future (Suva, Fiji: Institute of Pacific Studies 1991), p.113.

41. Ibid. p.116.

42. Professor Tupeni Baba, a professor of education at the University of the South Pacific (and later Minister of Education in the short-lived government elected in 2000), made observations on these lines at a meeting of the Citizens' Constitutional Forum on Multiculturalism: Educating for Multiculturalism (Suva: CCF 1998), p.71.

43. Tavola (note 40) p.118.

44. Pratap Chand, Member of Parliament, stated that the per capita grant in aid to secondary schools has dropped by 50 per cent, and that secondary children have to pay an average of F$200 a year in levies, Fiji Times 17 November 2005.

45. From a study by the Fiji Teachers Association, reported by news agencies on 12 July 2006: e.g. People's Daily, http://english.people.com.cn/200607/12/eng20060712_282340.html (accessed 5 October 2006).

46. Tavola (note 40) p.158.

47. According to the governing party's (SDL) manifesto for the 2006 General Election.

48. Reported in Fiji Times, 1 December 2005.

49. The public service figures are taken from Asesela Ravuvu, The Facade of Democracy: Fijian Struggle for Political Control (Suva: Reader Publishing House 1991), p.77, attributed to the Fiji Public Service Commission Report 1987.

50. Taken from tables compiled in connection with the plans of the People's Coalition Government in 2000.

51. Fiji Human Rights Commission (FHRC), Report on Government's Affirmative Action Programmes, 2020 Plan for Indigenous Fijians and Rotumans and the Blueprint (Suva: FHRC 2006), http://www.humanrights.org.fj/pdf/AA_report.pdf (accessed 5 October 2006), p.64.

52. See R. Robertson and William Sutherland, Government by the Gun: The Unfinished Business of Fiji's 2000 Coup (Annandale, NSW and London: Pluto Press and Zed Press 2001).

53. Constitution 1990, Chapter III.

54. The submission stated that ‘[e]xperience elsewhere suggests that affirmative action can cause great resentment among those who are not its beneficiaries unless it is very clearly directed at the really disadvantaged groups. It also produces resentment if it is applied to cover most employment opportunities and other resources. Politically it is hard to resist the continual prolongation of affirmative action. In most instances the beneficiaries of affirmative action are the better off in the target communities, and its benefit eludes those most in need. Affirmative action often lends itself to corrupt practices, and there is inadequate accountability of implementation. It can lead to the lowering of efficiency in the delivery of services and the lowering of morale. Most international conventions which authorise or require affirmative action stipulate that it be used only for the disadvantaged groups and for only so long as is strictly necessary’, National Federation Party and the Fiji Labour Party, Towards Racial Harmony and National Unity (August 1995), pp.52–3.

55. Ibid., note 17, Para.8.38.

56. Space constraints preclude more detailed discussion; see Jill Cottrell and Yash Ghai, ‘Constitutional Engineering and Impact: The Case of Fiji’, in Said Arjomand (ed.), Constitutionalism and Political Reconstruction (Brill, 2007 in press).

57. The Compact, beginning with: ‘The people of the Fiji Islands recognise that, within the framework of this Constitution and the other laws of the State, the conduct of government is based on the following principles’, is in section 6. Section 7 states that the Compact is non-justiciable but should be used in the interpretation of the Constitution or laws made under it.

58. The provision on the right of equality (section 38) exempts Fijian land law and customs from its application.

59. This formulation of paramountcy as a ‘protective principle’ is different from its interpretation as advanced by the then leading party of indigenous Fijians in its submission to the Reeves Commission as the basis of political domination (submission of SVT, Respect and Understanding: Fijian Sovereignty, the Recipe for Peace, Stability and Progress – excerpts are in Brij V. Lal, Another Way: The Politics of Constitutional Reform in Post-Coup Fiji (Canberra: National Centre for Development Studies/Asia Pacific Press 1998), pp.143–54.

60. FHRC, Report (note 51) p.62.

61. Winston Halapua, Tradition, Lotu, and Militarism in Fiji (Lautoka: Fiji Institute of Applied Studies 2003), p.154: ‘poverty [among indigenous Fijians] was a direct consequence of the exploitation of the ordinary ethnic Fijians by the new ruling class which ethnic Fijians themselves brought to life. A new system of exploitation entrenched itself in Fiji after 1987. This system, which we call turagaism [traditional chiefly system] saw the emergence of a new ruling class which not only placed its own pecuniary and political interests ahead of the vanua [the community] or the ordinary people, but whose survival depended fundamentally on the exploitation of their own people.’ Indeed the system was in place well before 1987 but the victory of the opposition groups in that year led to the 1990 constitution after the coup which formally entrenched the principal features of the system.

62. This little bombshell was introduced by the legal draftsmen; it does not appear in the Reeves Commission report. It caused something of a frenzy (people seemed to imagine Fiji becoming a haven for gay matrimonials!) and a draft bill was prepared to remove this from the Constitution. This was forestalled, incidentally, by the 2000 coup, and has not yet been reintroduced. The criminal law on the books still discriminates in nineteenth century British fashion as two men found to their cost in 2005. They were convicted by a magistrate who had obviously never heard of gay rights, but appealed successfully, Nadan v. The State 2005 FJHC 1, http://www.paclii.org (accessed 5 October 2006), on the ground of the right to privacy.

63. Constitution 1997, s.38.

64. The use of this stipulation was recommended by the Reeves Commission (para.7.283).

65. This was not part of the Reeves recommendations, but is no doubt derived from the South African Constitution, as is the prohibition on indirect as well as direct discrimination.

66. See Cottrell and Ghai (note 56) for an account of the electoral system and the events in 1999.

67. Vijay Naidu, Kevin Barr, Robert Lee and Kesaia Seniloli, ‘Fiji's Poverty Alleviation and Eradication Strategy Framework: Opening Doors to an Inclusive Society’, Draft prepared for the United Nations Development Programme and Fiji's Ministry for National Planning, July 1999.

68. Yash Ghai, assisted by Jill Cottrell, was commissioned to prepare this report.

69. Fijians, often contrasted with vulagi or guests – meaning particularly in this context the Indo-Fijians.

70. For an account see Michael Field, Tupeni Baba and Unaisi Nabobo-Baba, Speight of Violence: Inside Fiji's 2000 Coup (Auckland: Reed 2005).

71. Notably Field et al., ibid., do not mention affirmative action. At p.63 they note the achievements of the first six months of the Labour (or People's Coalition) government and that after that period Chaudhry's approval rating was 60 per cent.

72. A summary is available at ‘Scoop’ Independent News, 17 July 2000, http://www.scoop.co.nz/stories/WO0007/S00055.htm (accessed 5 October 2006).

73. Ibid., note 24.

74. From the Plan's ‘vision and mission’.

75. A group of non-governmental organisations rightly commented that ‘[t]he State has attempted to prevent any challenge to nullify the social justice legislation by stating that the legislation effectively overrides the 1997 Constitution (section 8), a clear violation of Constitutional principles and the rule of law’: NGO Report on the Status of Women in the Republic of the Fiji Islands, by the Fiji Women's Rights Movement, the Fiji Women's Crisis Centre, and the Ecumenical Centre for Research Education and Advocacy (2002), section B.1, available on the Ecumenical Centre for Research Education and Advocacy website, http://www.ecrea.org.fj/webpages/publications_files/Submissions/cerd.doc (accessed 5 October 2006).

76. State Party report CERD/C/429/Add.1, 15 November 2002, para.41.

77. Concluding Observations of the Committee on the Elimination of Racial Discrimination: Fiji. 02/06/2003. CERD/C/62/CO/3. See also Margot Salomon, ‘Masking Inequality in the Name of Rights: The Examination of Fiji's State Report under the International Convention on the Elimination of Racial Discrimination’, Asia-Pacific Journal on Human Rights and the Law, Vol.1 (2003), p.52.

78. Committee on the Elimination of Discrimination against Women: Fiji. 07/05/2002. A/57/38 (Part I), paras.24–70, at para.48.

79. Recommendations to the Commonwealth Ministerial Action Group on the Political and Human Rights Situation in the Fiji Islands, compiled by Mitchell O'Brien (New Delhi: CHRI 2002).

80. See the collection of documents, including State Party report (note 76) in Ganesh Chand (ed.), Papers on Racial Discrimination (Volume 1) The CERD Papers (Lautoka: Fiji Institute of Applied Studies 2005), available on the institute's website at http://www.fijianstudies.org/fias_pord_vol1.htm (accessed 5 October 2006).

81. FHRC, Report (note 51).

82. Ibid. pp.69–90.

83. The definition is that proposed by the CRC; it seems to include the military.

84. Para.8.67. Of the omission, Counsel to the Commission, Alison Quentin-Baxter, commented that ‘[w]hile there is probably a certain logic in not laying an open-ended duty upon Parliament to make provision for social justice and affirmative action programmes, the provision does not have the effect intended by the Reeves Commission of requiring all affirmative action and social justice programmes to be specifically authorised by an Act conforming with the constitutional requirements’, see ‘Ethnic Accommodation in the Republic of the Fiji Islands’ (prepared for the School of Law, University of Waikato 1999), http://www.undp.org.fj/elections/reports/index.htm (accessed 5 October 2006).

85. Perhaps it does make it easier for the government to take little note of the fact, as its own ‘50:50 by 2020’ document states, that while maternal mortality rates declined among the Fijian community between 1997 and 1999, the rates increased within the Indo-Fijian community – see para.9.2.6.

86. Para.8.87.

87. Para.8.58.

88. Republic of South Africa v. Grootboom 2001 (1) SA 46, 68–9.

89. It must be recognised that the Fiji courts are not entirely lacking in creativity and even boldness. They, for example, held that the 2000 coup was illegal (Republic of Fiji v. Chandrika Prasad, Civil Appeal No. ABU0078/2000S, 2001 FJCA 2).

90. Para.8.55. It is not clear where the Reeves Commission's language went to: the Report of the Joint Parliamentary Select Committee (Parliamentary paper No.17 of 1997), on which the draft was based, stated (para.E2) that the 1990 Constitution provisions should be replaced as recommended by the Commission. The Commission language was defective as it seemed to assume that everyone was disadvantaged: ‘Fijian and Rotuman people and other ethnic communities, and for women as well as men, and for all other disadvantaged citizens or groups of citizens.’

91. The references are to the Schedule of the Social Justice Act.

92. Social Justice Act 2001, Section 3.

93. Incidentally, this defines a word that does not otherwise appear in the Act at all. It can perhaps be laid at the door of the Fiji Human Rights Commission which had asked that these terms be defined by the Act when it commented on the draft Bill. However, an Act of Parliament may elaborate but cannot define words for the purposes of a Constitution.

94. Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 as amended in 2003, s.31(4), ‘The Chief Justice must, in consultation with the Judicial Service Commission and the Magistrates Commission, develop the content of training courses with a view to building a dedicated and experienced pool of trained and specialised presiding officers, for purposes of presiding in court proceedings as contemplated in this Act, by providing (a) social context training for presiding officers.’

95. Ibid., note 17, para.8.77.

96. Indra Sawhney v. Union of India AIR, 1993 SC 447.

97. Here ‘equitable access to’ is used in relation to natural resources, ‘access to’ adequate housing, health care, food, water, social security, and ‘effective access’ to the right to education.

98. Ibid., note 17, paras.8.63–6.

99. Grootboom (note 90) p.67.

100. Section 7. Perhaps it would have been compliant with the Constitution to make it possible for a resolution of Parliament to amend the schedule. Apparently at present subsidiary legislation is not even tabled in Parliament: Reddy et al., Public Finance Management in Fiji: The Institutional Environment and the New Financial Management Bill (Lautoka and Suva: Fiji Institute of Applied Studies 2004).

101. Based on government press release (15 December 2004), http://www.fiji.gov.fj/publish/page_3796.shtml (accessed 5 October 2006). We have not been able to read the text of the regulations.

102. Section 44(7).

103. ‘A person’ would include a private individual: so it would be permissible for government to require governments contractors to employ a certain percentage of Fijians and the contractors would not be guilty of discriminating – though in fact they would not be liable for this under the Constitution anyway.

104. Cf. the South African Employment Equity Act: ‘However, having regard to the fact that the Act requires an employer to take measures to eliminate discrimination in the workplace it also serves as a sword.’ Harmse v. City of Cape Town (2003) 24 I.L.J. 1130, 1141–42, Labour Court per Waglay J. See Saras Jagwanth, ‘Affirmative Action in a Transformative Context: The South African Experience’, Connecticut Law Review, Vol.36 (2004), p.725.

105. The more so as section 3 provides that ‘developments in the understanding of … human rights’ are to be taken into account in interpreting the Constitution.

106. See http://www.polity.org.za/govdocs/white_papers/pst&e.html (accessed 5 October 2006).

107. Ibid., note 17, para.9.5.3.

108. This extrapolates from the Government's own figures, and assumes that all the 802 farmers in the scheme were included in the information given – see ‘50:50 by 2020’, paras.2.5.1–2.

109. See http://www.fijianholdings.com.fj (accessed 5 October 2006).

110. As with the Equity Investment Management Company in the 1990s, see Ratuva, thesis (note 38) ch.7.

111. ADB report by Tony Hand et al., Technical Assistance Consultant's Report, Republic of the Fiji Islands: Fisheries Sector Review (June 2005), para.104.

112. Schedule to Act, Programme 17.

113. Ratuva (note 21) ch.7.

114. Special Report of The Auditor General of The Republic of The Fiji Islands – February 2002, 0020 Ministry of Agriculture: Affirmative Action Plan Parliamentary Paper No 11 of 2002, available on the website of the Office of the Auditor General www.oag.gov.fj (accessed 5 October 2006), p.2. See also Report for 2004, Volume 5 Infrastructure (Parliamentary Paper No. 113 of 2005): ‘The Social Justice Regulations [have] been misinterpreted by some Ministries and are not following the specific requirements of the social justice regulation and procedures on procurements’ (Part 3, p.3)

115. 2002 Report, Volume 4 Audit Report on the Economic Services Sector (Parliamentary Paper No.91 of 2003), para.37.2.

116. Draft Strategic Plan for 2007–11 (released in September 2006), http://www.fiji.gov.fj/uploads/Draft_SDP_2007_11.pdf (accessed 5 October 2006), p.9.

117. See above note 69.

118. There is of course a huge literature on this. Pretorius, ‘Constitutional Standards for Affirmative Action in South Africa: A Comparative Overview’, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, Vol.61 (2001), pp.403–57, discusses cases from the US and Canada as well as South Africa.

119. Responding to the President's Speech on the opening of Parliament, 8 June 2006 (Hansard), http://www.parliament.gov.fj/hansard/index.aspx (accessed 6 October 2006). A Minister quoted this with approval.

120. As is clear from the Grootboom case above.

121. 6 June 2006; most readily available as ‘HE's Address 2006.doc’, http://www.fiji.gov.fj/uploads/ (accessed 5 October 2006). Incidentally, the undertaking is repeated in the Draft Strategic Plan for 2007-11 (note 118). The Plan (p.9) stated that ‘[s]ome of the issues raised in the [Fiji Human Rights Commission] report would be addressed in a comprehensive review to be undertaken by Government on all its affirmative action policies and programmes. A Cabinet Sub-Committee on Equal Opportunities and Human Rights has been established to oversee the review process that will involve wide consultations throughout the country.’ This despite the fact that the Prime Minister's response to the Commission report was virulent: ‘the Commission has handled this entire question very badly and brought its credibility into doubt’. Media Briefing 30 June 2006, http://www.fiji.gov.fj/publish/page_6976.shtml (accessed 5 October 2006).

122. Draft Strategic Plan (note 116), p.70.

123. Citizens Constitutional Forum, Coup Update 16, received 9 February 2007.

Additional information

Notes on contributors

Jill Cottrell

E-mail [email protected]

Yash Ghai

E-mail address: [email protected]