What makes constitutions legitimate? A legal analysis of constitutions and legitimacy: The example of Fiji.
Shameem, S. (2019). What makes constitutions legitimate? A legal analysis of constitutions and legitimacy: The example of Fiji. (Thesis, Doctor of Juridical Science (SJD)). The University of Waikato, Hamilton, New Zealand. Retrieved from https://hdl.handle.net/10289/12636
Permanent Research Commons link: https://hdl.handle.net/10289/12636
The title of this thesis What makes Constitutions Legitimate? A Legal Analysis of Constitutions and Legitimacy: the Example of Fiji gives an indication of its subject matter and its significance to understanding the relationship between legitimacy and legality in constitutional theory. In light of early studies of constitutionalism and case law from the first constitutional case to the most recent in Fiji after a revolution or regime change has occurred the common understanding was that legitimacy and legality were two different theoretical concepts. Legality was obtained through effectiveness and success while legitimacy's attributes were justice and morality. It seemed that legality was more important than legitimacy in any declaration of a successful regime change. However, recent scholarship suggests that a deficit in legitimacy is also necessarily a failure of legality. Without justice and morality there is no legality in any constitutional order and thus, following John Locke and specific constitutional provisions appearing in modern constitutions, the lack of legitimacy, precisely because it also indicates absence of legality, gives the citizenry the right to revolt. The question is whether there is a common understanding of the meaning of justice and morality. Morality now refers to rights represented by the Universal Declaration of Human Rights. Justice, on the other hand, is more complex- it incorporates a series of qualities which developed incrementally through the centuries of human progress. Each of these qualities is relevant for a particular time and socio-economic and political space. But, above all, the main quality of justice that seems to be consistent over time are the concepts of fair and independent delivery of law and free access to the mechanisms of justice. The application of these concepts to the Fijian context reveals that in most Fijian constitutional instruments from 1865 to date both fair and independent delivery of justice and access to the mechanisms of justice were assured. The two exceptions were the 1990 Constitution and the 2013 Constitution. In both these documents fair and independent delivery of justice and access to the courts were limited by ouster clauses. In the case of the 2013 Constitution the ouster provisions are so serious as to dislodge the fundamental grundnorm of Fiji established by the first Constitution of 1865, reinforced by the 1970 Constitution, where people's rights were considered to be free and unfettered. The 21st century constitutional situation thus triggers the right to rebel should the citizens of Fiji feel so inclined. To fend off the risk of violence in the community in response to the unlawful and illegitimate 2013 Constitution what is proposed in this thesis is a new Constitution, based on the last consensus based instruments, namely the 1997 Constitution fortified by the 2008 People's Charter. The innovative methodology of autopoiesis is used to draft the framework and principles of a justice-defined Fijian Constitution for the future.
The University of Waikato
All items in Research Commons are provided for private study and research purposes and are protected by copyright with all rights reserved unless otherwise indicated.
- Higher Degree Theses