Tensions And The Rule Of Law

It is the recurring nightmare of many Fijians that they will one day be a mendicant people without land, tradition, culture or soul. This deeply-held belief has its roots in our history. From first contact with the Christian missionaries when traditional belief systems were supplanted to colonialization, the effect of indenture and engagement with the modern world, Fijians have reacted and in doing so have yielded something of themselves.

The rule of law to Fijians is an arcane concept that they perceive is a foreign idea imported to subvert their way of life. It is for them an obstacle to their aspirations. It is because they conceive of indigenous rights as superior to and beyond the rule of law. Fijian rights in this scenario can only be secured by force. In these circumstances, the critical element is political control and domination of the state apparatus. However, the problem with this state of affairs is that force and political power per se are notoriously fickle instruments.

Admittedly the present Government has a difficult, almost impossible load to juggle. It has concluded with the support of the Fijian people and their institutions such as the Bose Levu Vakaturaga and the Methodist Church that it must place Fijian 'development' at the head of its list of priorities. On the other hand, it requires the goodwill and understanding of the other communities who provide the greater part of its tax revenues for expenditure. The result has been a rather lopsided approach that accords precedence to indigenous concerns.

In the debate about the state of interethnic relations, there is a constant refrain about the need for Fijian unity. Almost all Fijians espouse some sort of Fijian unity. It is because they place little faith in existing structures and the rule of law to afford them and their rights protection. However, Fijian unity is increasingly becoming more apparent than real. What is emerging is a more mature form of common interest. One that recognizes that we can unite on the issues and values that are close to Fijian hearts whether it be land, resources, customs, tradition, language and religion. At the same time we are free to make common cause with others, Fijians as well as other communities, on other concerns which engage us. This is essentially an argument to remove Fijians from the straightjacket that keeps us all together for fear that we would be isolated apart. In any case, it has become a major challenge for politicians to keep Fijians together as economic and other interests fragment and dissipate their cohesiveness. That ought not to be perceived as a threat or danger but as a consequence of social change.

It is over four years since the events of May 2000. The rule of law was subjected to great trials and it has emerged scarred but intact. However its challenges are far from over. Ultimately, the best guarantor of the rule of law is the recognition by people of its value and their willingness to fight for, and uphold it. Until that point is reached, the journey to it must be seen and appreciated for what it is: in a society such as ours where divisions exist both inter-ethnically and within communities, the process of nation building of which the rule of law is an integral part requires a deft balancing of priorities in a fair and inclusive manner. This allows everyone to be a part of the challenges that we need to face together. The path to this point has been tortuous…however it has also been a critical learning experience where we have had to combine political reality with legal principle. The result is an imperfect one but the rule of law is stronger for having weathered these sustained assaults on it.

Ratu Joni Madraiwiwi is a former Fiji High Court judge who is now in private law practice. This is an abridged version of his Siwatibau Memorial Lecture, Honiara, Solomon Islands, 16 September 2004.