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Fiji's new constitution is as bad as South Africa's apartheid, according to the International Commission of Jurists.

PETER THOMPSON: Fiji's new post-coup constitution is as bad as the apartheid laws in South Africa according to the president of the New South Wales Court of Appeal, Justice Michael Kirby. Justice Kirby made his comments after releasing a strongly worded appraisal of the constitution, prepared by the Australian section of the International Commission of Jurists. Our South Pacific correspondent, Jemima Garrett, says the statement was also signed by Gough Whitlam, Janine Haines and New South Wales Attorney-General, John Dowd.

JEMIMA GARRETT: Fiji's new constitution, promulgated by presidential decree in July gives indigenous Fijians 37 seats in the new Lower House of Parliament, while the equally numerous Indian community gets only 27. But it's not just that fact which worries the ICJ. It's statement describes the new constitution as a means by which Fiji may be ruled in perpetuity by a small group of Fijian Chiefs and their associates - the very same people who were voted out of office in the elections just prior to the 1987 coups. Although the coups were carried out in the name of indigenous rights, the ICJ says some indigenous Fijians face serious discrimination in the allocation of seats in Parliament. Worse still, says the ICJ, significant numbers of Fijians will not be eligible to vote. Justice Michael Kirby explains.

MICHAEL KIRBY: The Fijians, in order the qualify to vote, must - under the constitution - demonstrate a two years residence in their constituency and, of course, those Fijians who have left their constituency to live in the towns - some of them in order to get away from the traditional rule and the traditional societies - will not be able to demonstrate the two year residence. In other words, the residence qualification in respect of Fijians is being used to filter out those who might be suspect.

JEMIMA GARRETT: The Australian Government has taken the view that this constitution is at least a return to representative government and probably the best that can be achieved in the situation. Is that a fair assessment?

MICHAEL KIRBY: Well, that's a matter for politicians who are on the spot to look at. All I can say is that as a Lawyer and a person concerned about the state of international law, this constitution is not a step forward towards the rule of law or constitutionalism. It's dressing up in the form of a constitution with a decoration of constitutional rights and human rights guarantees, provisions which can be set at nought by the military, which can be set at nought in times of declared internal security problems and which, therefore, gives the appearance but not the reality of constitutionalism. And what those in Fiji who are dedicated to democracy, whether they be a Fijian or of Indian or of other racial origin, have to ask themselves is: do we lend a colour of credibility to this constitution by participating in it, when we know that we can never - by democratic means - achieve effective control of the Parliament? And if you're of non-Fijian origin never, under the constitution, secure the highest office, though you have the support of an overwhelming majority of the people. That is not the self-determination of peoples of which the United Nations Charter speaks. If we look at Kuwait, the battle in Kuwait is about ultimately the right of self-determination, so that issues will be determined under the new world order, not by aggression, not by force, not by dressed up constitutions, but by the will of people.

PETER THOMPSON: Justice Michael Kirby.