Draft Constitutions. 2. The Ghai and Government Drafts Compared

http://1.bp.blogspot.com/-dKTWZuG6QLc/UVQXUuVrMNI/AAAAAAAAN3A/DMpCzCgiFmQ/s1600/Constitutions.jpg   By Crosbie Walsh
(In the rush to publish this article, some errors may have slipped though. I would be pleased to hear from readers who detect any errors, and will do a more thorough editing job myself over the next few days) 
In the first part of this article I made the point that the Ghai and Government draft constitutions were based on different premises. The Ghai draft endeavoured to include the diversity of views expressed in submissions to the Constitutional Commission and establish a raft of checks on the authority of Parliament and the Prime Minister. Most importantly, it recommended the formation of a largely non-elected National People's Assembly to oversee Government. The Government draft, on the other hand, proceeded from its "non-negotiable conditions", such as the secular state and the equal value of votes, which were not in accord with the some public submissions, and firmly placed legislative authority in the hands of Parliament, through the PM.


The Ghai draft was 199 pages; the Government draft 91. The difference goes some way towards explainng the elaborations and details of the one and the brevity of the other.



Preambles

The preambles of the two documents are broadly similar but the Ghai preamble made special mention of the iTaukei and Rotuman "gift of these islands" and in this respect was more similar to the 1997 Constitution.



Founding principles and the State

Chapter 1 of the Ghai draft continued in like vein with special mention of languages and religion. Both drafts, in their Chapter 1, wrote of common and equal citizenship, one united nation, the supremacy of the Constitution, human rights, and the "limitation and separation of powers and other checks and balances." The Ghai draft introduced the notion of the National People's Assembly which is explained later.



The environment and resources

Chapter 2 of the Ghai draft, Our Natural Environment, continued with assurances that existing land rights and titles were secure, but the foreshore, minerals and fishing rights were to be administered by Government. A National Consultative Land Forum was proposed to protect and reform land laws, and undisputed changes would require a two-thirds Parliamentary majority.



The Government's only mention to the natural environment was as "a prudent, efficient and sustainable relationship with nature" although, separately, the PM has given assurances that iTaukei land rights were in no way threatened by this Government.



Human rights


Chapter 3 of the Ghai draft was entitled Our Human Rights and Chapter 2 of the Government draft Bill of Rights. Both addressed the same issues —rights and freedoms of speech and assembly, the rights of those detained by the police, and so forth. The difference was in the "limitations" to these rights. The Ghai draft left these in the hands of the courts or Parliament; the Government draft in the hands of Parliament, but only to be exercised for "national security, public safety, public morality, public health and in the orderly conduct of elections." and then only to act in ways that are "lawful, rational, proportionate, fair and reasonably prompt.



The limitations placed by Government were almost identical to those in the 1997 Constitution which, with freedom of expression for example, stated, freedom of expression in the interests of: (a) national security, public safety, public order, public morality, public health or the orderly conduct of national or municipal elections;The 1997 Constitution and the Government draft also made "hate speech," against individuals or groups an offence. Political, economic, employment, educational and the rights of children and the disabled were mentioned in both drafts and were broadly similar in their intent.

Politics and Government

Chapter 4 to 10 of the Ghai Draft, dealing sequentially with civil and political life, good governance and leadership, the National People's Assembly, the President, representation of the people, Parliament and the national executive) cover the same grounds as Chapters 3 (Parliament) and 4 (The Executive) of the Government draft. Their essential difference is in the emphasis on freedoms, standards, checks on Government authority, the electoral system and larger size of Parliament, the retention of an apolitical Great Council of Chiefs, and the appointment of the President in the Ghai draft, and the more detailed description of the parliamentary system, the small size of Parliament, and qualifications for candidates the Government draft. Both drafts deal with a number of actual and recommended commissions. that I will deal with separately. Government also had a separate chapter, Chapter 8, dealing specifically with accountability and transparency that I will also separately discuss.  
For other matters covered in these chapters, it is easier to discuss them by heading:

Bose Levu Vakaturaga (Great Council of Chiefs). The Ghai draft retains it as the "custodian of iTaukei culture and tradition, and an an adviser to the State. Government had previously stated these functions were already well catered for and makes not mention of the GCC.  

The media. Most measures in the Ghai draft are intended to make the media independent of political control. It recommends the appointment of a Media Standards body. Other than the general assurance of media freedom among the Human Rights (Chapter 2), Government makes no further mention of the media. Its Media Decree deals with standards.

 Political parties and candidates. The Ghai draft (Chapter 4)states parties must promote national unity, be inclusive, accept a code of conduct and not engage in hate speech. Controls are placed on funding; they must submit annual reports, and be assured of access to the state-owned media. The Government draft (Chapter 3) deals with the qualifications and prohibitions of candidates (no undischarged bankrupts, no one subject to a 12 month or more prison sentence, no one imprisoned over he previous five years for dishonesty, abuse of office, corruption, offences related to an election, or sexual offences. (Qarase and possibly Chaudhry may be affected by these restrictions.) The 

President (Chapter 7). Under the Ghai draft the President would be elected by the National People's Assembly (see below) and all MPs. The Speaker would act as his deputy., and under the Government draft by all MPs from nominations by the PM and Leader of Opposition. The Chief Justice would act as his deputy.  

Electoral system. Both supported one man one vote one value with no mention of ethnicity. Ghai draft: Four electoral districts; proportional representation, closed lists. Government draft: Four electoral districts based on Fiji's four administrative divisions. Proportional representation. open lists  

Voting and Parliamentary seats. Both supported multi-member electorates and voting at 18 years. Ghai draft: 71 seats (the same as the old parliament) , 60 from multi-member electorates and 11 from closed lists chosen by parties. If candidates in public office, deemed to have resigned Government draft: 45 seats, open lists.  

Speaker and National Executive. Ghai draft: Speaker not an MP, elected by Parliament. PM elected by Parliament. A 14-member Cabinet that may include up to four people, chosen by the PM, from outside Parliament, Cabinet to reflect ethnic, cultural and gender diversity. Government draft: PM elected by majority party (-ies). PM also the Commander-in-Chief of the RFMF. It was previously the President. Cabinet appointed by PM. If no MP with suitable legal qualifications, the PM may appoint as Attorney-General someone to Cabinet from outside Parliament who has no vote. (There was not provision for an A-G in the Ghai draft. The functions were assumed by the Solicitor-General.)

The Judiciary, Justice and the Law

Both drafts wrote of the same values. The difference was mainly in how judges were to be appointed and dismisses, and mention of military Courts only mentioned in the Ghai draft.  

The Chief Justice. In the Ghai draft the Chief Justice was to be appointed by the President on the recommendation of the Judicial Service Commission after consultation with the PM and Leader of the Opposition. While normally a member of the JSC on this occasion the JSC only included a High Courts judge (chosen by other High Court judges), one representative each by the Minister of Justice, the Fiji Law Society, and two non laweyrs, one a woman, the other a man selected by the Constitution Offices Commission.  

In the Government draft the Chief Justice is appointed by the President on the recommendation of the PM and Attorney-General. The Judicial Service Commission, which plays no part in the appointment, comprises the Chief Justice, President of the Court of Appeal, the Permanent Secretary of Justice, a lawyer and a non-lawyer appointed by the A-G.  

These recommendations may be compared with the 1997 Constitution where the Chief Justice was appointed by the President on the advice of the PM following consultations with the Leader of the Opposition. The Judicial Service Commission, which also played no part in the appointment of the Chief Justice, comprised the Chief Justice, the Chairperson of the Public Service Commission and the President of the Fiji Law Society.  

Other legal appointments. By and large, under the Ghai draft, the appointment of most judges involved the JSC following consultation with the PM. Appointments under the Government draft involved the the PM, the A-G and, sometimes, the JSC after consultation with the A-G. Under the 1997 Constitution the President acted on the advice of the JSC following their consultation with the relevant Government, and sometimes also with the relevant House Standing Committee.

Independent Commissions and Offices (Ch.13, Ghai draft) and State Services (Ch. 6, Government draft)  

The Ghai draft recognized recognized ten commissions and five offices, the most important being the Fiji Human Rights Commission, a new Ethics and Integrity Commission, and the very important Constitution Offices Commission, whose membership included the chairpersons of the FHRC or the Ombudsman, the chairpersons of the Ethic and Integrity and Electoral Commissions and four others appointed by the PM and Leader of the Opposition. Membership of several of the commissions overlapped. Appointment to the positions of Director of Public Prosecutions, Auditor-General, Governor of the Reserve Bank and Commissioners of Police and Corrections (but not the RFMF) were made by the Constitution Offices Commission. The Office of the Solicitor-General would provide legal advice to Government. The position of Attorney-General was abolished. 

Commissions recognized in the Government draft included the JSC (previously mentioned), the Independent Legal Service Commission and Fiji Independent Commission Against Corruption, both appointed on the advice of the A-G (who may or not be an elected member of parliament), and the Public Service Commission, appointed on the advice to the PM by the PSC Permanent Secretary. The Accountability and Transparency Commission is to be appointed on the advice of the PM and Chief Justice The positions of Solicitor-General and Director of Public Prosecutions are filled on the recommendation of the JSC, and that of the Reserve Bank Governor, the Commissioners of Police, Corrections and the Commander-in-Chief of the RFMF on the advice of the PM following consultation with the relevant ministers. Under the 1997 Constitution most appointments to Commissions were made by the President on the advice of the relevant Government Minister following approval by "the appropriate sector standing committee of the House of Representatives."  
Both drafts have oaths of office for all senior position in government, the judiciary and the security services.


In summary, the Ghai Commission recommended an  network of commissions with minimal direct input from Government. The Government draft concentrates most authority in the person of the PM. 

The 1997 Constitution had far fewer checks and balances than the Ghai draft, and devolved responsibility to several Government ministers, backed up by parliamentary standing committees.

National Security, Emergency Powers, the RFMF and Immunity  

The Ghai draft (Chapter 16) establishes a National Security Council comprising the PM, ministers responsible for security and the commanders of the three security services. Cabinet can declare states of emergency only on the advice of the Council for up to ten days after which it may only be renewed by Parliament. The RFMF can only be involved in emergency work at the invitation of the police. A Cabinet Minister, and not the PM, is directly responsible for the RFMF. The Commander-in-Chief RFMF is appointed by Cabinet for a single term of five years. Recruitment to the military must "broadly reflect ethnic, cultural and gender diversity" and members of the military and the police "must not obey a manifestly illegal order." Immunity is to be granted only to people who agree to swear an oath of reconciliation and allegiance.

 In the Government draft (Chapters 9 and 10), the PM may declare a state of emergency on the advice of the Commissioner of Police or the Commander of the RFMF. The emergency can be declared for up to one month but must then be only renewed by Parliament. The PM, and not the President, is the Commander-in-Chief of the RFMF. Immunity is granted to all key people involved in previous coups; they are free from criminal prosecution except for civil crimes covered in the Crimes decree; and the immunities cannot be revoked by future parliaments.

 Amending the Constitution

 In the Ghai draft (Chapter 17) no changes may be made to certain entrenched clauses, and no change made before the second parliament. Amendments may be recommended by a petition of 1,000 citizens of by a resolution of the National People's Assembly, also approved by 48 of the 71 MPs in parliament.

In the Government draft (Chapter 11), amendments may be made where a Bill is passed three times in Parliament and approved by three-quarters of the House and endorsed by two-thirds of the votes in a national referendum.  

Transitional Arrangements  

Briefly, and there are many in the Ghai draft, the present Government is progressively "eased out"; and a Transitional Advisory Council and the National People's Assembly (in which the present and future Governments have minority membership, see below) are established . The President remains in office until a new President is appointed by the NPA; the PM and Cabinet continue in office (but must respect the Constitution and the law) until a Caretaker Cabinet is appointed prior to the elections.  

The Government draft has the President, PM and Cabinet remaining in office until the first sitting of Parliament that will meet no later than 30 September 2014. Until an Elections Commissioner or Supervisor is appointed, the Permanent Secretary responsible will continue to make preparations for the elections. No legal challenges may be made to any promulgation or decree until the first sitting of the new Parliament.  

The Decrees  

The Ghai draft would remove certain clauses of the following Bainimarama decrees: Regulation of National Spectrum Decree 2009 Media Industry Development Decree 2010 Employment Relations Promulgation 2007 Employment Relations (Amendment) Decree 2011 Essential Industries (Employment) Decree 2011 Public Order Decree 2012 State Proceedings (Amendment) Decree 2012 Television Amendment Decree 2012

The membership of the National People's Assembly proposed in the Ghai draft

"(a) the President of Fiji, and any person who has previously been elected President
of Fiji;
(b) the Speaker and Deputy Speaker of Parliament, who are the Chair and Deputy
Chair, respectively, of the Assembly;
(c) the Prime Minister and other members of the Cabinet, and the Leader of the
Opposition;
(d) 4 members of Parliament selected by the Prime Minister, and 6 members of
Parliament selected by the Leader of the Opposition, to represent the diversity
of Parliament;
(e) 10 representatives of local government in urban areas, and 10 representatives
of local government in rural areas;
(f) the Ombudsman, the Chair of the Fiji Human Rights Commission, and the
Chair of the Ethics and Integrity Commission;
(g) 10 women and 10 men appointed by the Constitutional Offices Commission on
the basis of qualifications, in accordance with Article 70; and
(h) 36 women and 36 men, chosen by lot by the Electoral Commission from
among individuals nominated by civil society, in accordance with Article 71." 

 ---
I shall give my opinions on the the drafts this evening (after a game of golf and a flu injection.)

Comments

Anonymous said…
Croz,

This analaysis and any debate is pointless. Thousands of submissions where made to Ghai's team but they have mostly been disgarded with the new military draft. Why would they suddenly listen now ? They scrapped the Ghai draft because they didn't like it and they certainly won't entertain anything they don't like going forward. Lets just all accept we will have a new constitution, Frank will be elected the new PM and life will carry on much the same as it has for the last 6 years. On the positive we wont have any annoying unions disrupting everythng and the Church will remain in the back seat. The only negative is the nepotism and corruption of the past transfers to new players (like the PM, his family and supporters). But then again thats already happening.
On the Side Lines said…
Croz,

Much of the concerns raised by many critics revolve around so much power sitting with the PM going forward. In many respects this continues what Frank has today – significant power. I think everyone is concerned he will continue to rule like he has to date – personal vendettas against opponents and very little transparency. And Frank of course wants as little checks and balances on his power as possible (he clearly believes he will be the PM post 2014).

What Frank has not thought about is what happens when someone else becomes PM. He can and I believe will ensure that Mahen and Qarase etc will not be able to run. I also believe he will win in 2014 one way or another.

But he can’t rule forever. Frank should be worried about all the power he wants being in the hands of a new ‘Qarase’ somewhere in the future. I worry just as much about this as Frank continuing with so much power and he should to.

The ultimate power Frank wants to hold on too is a threat to Fiji when someone else could be in power in the future. Frank would be wise to add more checks and balances. He may find it hard but it’s the right thing to do for the future.

Regards
On the side lines in Vitilevu
Anonymous said…
This blog only exists to create some sense of reasoned debate and act as a tool for slagging any opposition. The very mild and very occaisional criticism of government is to give it some credibility.

Of course nothing will change with the constition.

king Frank will live on.
Crosbie Walsh said…
@ Anonymous No.1 ...Others are less cynical and would disagree.
Anonymous No. 2. This blog does indeed exist to help create reasoned debate, but then I lost you. My personal position is clearly spelt out in the Aims, Publisher page under the main heading. I suggest you consult it.
Crosbie Walsh said…
@ On the side lines ... I agree.

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