The New Constitution: Checks and Balances

President Ratu Epeli Nailatikau
By Crosbie Walsh

The draft constitution that became law last Friday saw opinions still divided on its legitimacy and fairness. The identities and allegiances of those for and against are well known but one surprise came from Randall Powell, the Australian Fiji Appeals Court judge who with two other judges found the 2006 coup to be illegal, an event that led the Bainimarama government to the watershed decision to abrogate the 1997 constitution, and a hardening of Government's attitude towards local and overseas detractors. Justice Powell had reservations about the immunity clauses and the legality of the new draft constitution but otherwise he thought it a sound document.

Although the Government draft can make no greater claim for legal legitimacy than the Yash Ghai draft it supersedes, it also involved extensive public consultations, and the final Government draft is different in many respects as a result of this consultation. In March, for instance, the Citizen's Constitutional Forum (CCF) published an analysis that criticized the concentration of power in the hands of the Prime Minister and Attorney-General, noting their role in appointments to 16 commissions and offices. In the final draft, changes have been made to 14,  with most authority devolved to a new a six-member Constitutional Offices Commission, which includes the Leader of the Opposition and another member recommended by him.

The legality issue also troubles the leaders of the old political parties, combined as the United Front for a Democratic Fiji (UFDF), despite the fact they were happy to go along with the Yash Ghai draft, even though, using the same criteria, it also had no legitimacy. The UFDF is also unsure whether its members will contest the 2014 elections, which they claim will be run by government for its own purposes, although international and local supervisory arrangements have not yet been announced.

This article does not contest these issues. Its sole concern is to address one question: Are there sufficient checks and balances in the new constitution to ensure that essential political and human rights will be protected? To answer this question it looks at the commissions established in the Constitution, their purpose, membership, and which body or person appoints their members.

In general terms, the commissions are the executors of parliamentary and government decisions. They appoint or recommend appointments to the judiciary and public prosecutions, the public service, the constitutional and electoral commissions, and the disciplined forces, and independently or as direct agents of a future elected government they are, or should be, the best measure of whether the constitution is upheld and the interests of Fiji citizens best served.

Few of the commissions are new. They were in place, with the same or similar name, under previous administrations So what has changed, and do the changes provide sufficient checks and balances on the powers of future governments?

Three positions head the administration: the President, the Prime Minister and the Attorney-General. The President is the Head of State and the Commander-in-Chief of the RFMF. He or she is appointed by Parliament from candidates proposed by the Prime Minister and Leader of the Opposition, and can only act on the advice of Parliament or a government minister.

The PM is the leader of the party or coalition of parties that can muster over half of the votes in Parliament. The Attorney-General, who must have at least 15 years legal experience, is appointed by the PM and if there is no suitably legally qualified MP, the A-G may be appointed from outside Parliament. If this is the case, he is a member of Cabinet but he cannot vote. Other senior positions are the Solicitor-General, appointed by the Judicial Services commission and the A-G; the Secretary-General of Parliament, appointed by the President on the advice of the Constitution Offices Commission (COC); and the Auditor-General and Governor of the Reserve Bank who are appointed by the COC.

Compared with the 1997 Constitution, the Leader of the Opposition has fewer powers; the Fiji Law Society, that influenced judicial appointments, has none; and the Great Council of Chiefs, that greatly influenced the appointment of the President and members of Senate, has been disbanded. Senate and the position of Ombudsman have also been disbanded, government arguing that the former is unnecessary and the functions of both have been assumed by government departments.

The commissions form three broad groups: those dealing with 1) the judiciary, 2) the public service, and 3) constitutional matters, including responsibility for the disciplined forces and electoral matters.

The Judiciary
The Chief Justice is appointed by the President on the advice of the PM and A-G. Formerly, the Leader of the Opposition was also involved.

The Judicial Services Commission (JSC), around which most judicial matters revolve, comprises the Chief Justice, the President of the Court of Appeal, the Permanent Secretary of Justice, and a lawyer of at least 15 years experience and a citizen chosen by the Chief Justice following consultation with the A-G.

Judges of the Supreme, Appeals and High Courts, the Independent Legal Services Commission, the Director of Public Prosecutions, the Accountability and Transparency Commission and the Legal Aid Commission are appointed by the President on the advice of the JSC following consultation with the A-G. The Mercy Commission, that advises the President on appeals for mercy, comprises the A-G and four people recommended by the JSC. The A-G appoints members of the Fiji Independent Commission Against Corruption. The removal of all senior members of the judiciary requires the appointment of a special Tribunal comprising senior judges from Fiji and overseas.

To my mind, this is a sufficiently robust system, although some people, thinking it is written to enhance the authority of the present A-G, may think his authority excessive. 

The A-G in the constitution, however, is the primary legal adviser to future governments, and these are his natural functions. I would have preferred the Leader of the Opposition to retain his former authority in judicial appointments but, importantly, he has a say in other appointments by being a member of the powerful Constitutional Offices Commission, and ultimate authority still rests in Parliament,

The Public Service
Senior positions in the public service are advertised and appointments are made by the Public Services Commission (PSC) whose members are appointed by the President on the advice of the Prime Minister. Permanent Secretaries to the various government departments are appointed by the PSC in consultation with the Prime Minister. The Public Services Disciplinary Tribunal is appointed by the JSC and the A-G.

These arrangements seem to provide sufficient checks and balances, with cross-links between Government, the Judicial Services Commission and the Constitutional and Electoral Offices Commissions.

Constitutional Matters
The establishment of the Constitutional Offices Commission is a result of public consultations. Government seems to have heeded concerns expressed by groups such as the CCF about the concentration of power in the hands of the PM and A-G.

Commission members include the PM, the A-G, the Leader of the Opposition, two people chosen by the PM and one chosen by the Leader of the the Opposition.

The Commission has extensive powers and makes or recommends appointments to the Human Rights and Anti-Discrimination Commission, the Public Service Commission, and the Supervisor of Elections and the Elections Commission.

It also, in consultation with the relevant minister, recommends the appointment of the Auditor-General, the Solicitor-General, the Secretary-General to Parliament, the Governor of the Reserve Bank, the Commissioner of Police, the Commissioner of Corrections and, significantly, the Commander of the Republic of Fiji Military Forces (RFMF).

In the earlier draft, most functions now assumed by the Constitutional Offices Commission were the responsibility of the PM after consultations with the relevant minister.

Dismissals from these appointments can only be made by a tribunal appointed by the Chief Justice following consultation with the A-G. The Commission must provide regular updates on its activities to Parliament.

Summary
The importance of the commissions to good governance is self-evident. The system of appointments seems reasonable although it could be argued that too much power still resides with the PM and A-G, especially in the appointment of the Chief Justice. I would have preferred a committee-appointed Chief Justice with some input from the legal and perhaps academic communities.

My overall view is that the commissions, and their systems of appointment, provide adequate checks and balances on misuses of power. Whether this will prove to be the case, of course, only time will tell, but this could also be said of the Ghai draft constitution or any other human document.


Comments

Abiding by One's Conscience vs Patron-Client politics said…
The Ombudsman is subsumed into a government department? Similar to the Minister for Reconciliation and his Permanent Secretary prior to 2006? Is this the way things should be? Is this where a necessary and sufficient protection for Human Rights and all universal, fundamental rights should find their appropriate resting place?

Archbishop Peter Loy Chong has very insightfully and incisively observed that Fiji has retained "the old iTaukei patron-client politics". The problem is a 'time immemorial' one but the definition is couched in contemporary language. The discussion will prove fundamentally of interest and expose how conflicts of interest continue to obtain across the board: thereby confounding a prospect for fairness, equality and justice for ordinary Fijians.

We appear to be incapable of divorcing ourselves from enshrined self-interest. Our imaginations are limited and our capacity for independent and objective thinking impaired. They were so in 1987, 1990, 1997, 2000, 2001 and in May and December 2006, April 2009. We appear not to have the political will to escape the patron-client template even in the National Interest.

The Archbishop is on the right track and his courage will win him not friends but enemies. However, his obvious intelligence and insight will have alerted him to this already. His Holiness Pope Francis I will amply understand. An Argentinian Jesuit with close acquaintance with coups d'etat and the fear and traumatic disquiet they unleash. "Abiding by one's conscience determines who get's to heaven", he has just written in a 2,500 worded letter in La Repubblica to atheists everywhere. "Abiding by it means making up one's own mind about what is good and evil".
Anonymous said…
Honestly, for the Archbishop to talk about patron-client relationships is the height of hypocrisy and absurdity. The Roman Catholic Church is one big Patron client institution from the top down. Peter Loy Chong does nothing without the Pope's authority and his flock do nothing without his. I'm Fed up with all the posturing of the Roman Catholic Church - Chong and Father Barr - about poverty and suffering. Their church is one of the richest institutions in the world. What does it do but pontificate? They should just shut the hell up and get on with catering to the spiritual needs of their flock. Bainimarama is only the latest incarnation of Melanesian big man politics. He is doing what he can to help relieve suffering by trying to grow the economy and provide people with sustainable jobs. Which is a lot more than these pious pharisees do. This is the trouble with the Jesuits. Just enough brains to think they're important but not enough to see the absurdity of their posturing.
Anonymous said…
It appears that no matter how much he tries the cowardly dictator can't get any respect or recognition from anyone that really matters? Apart from a few junta apologists and slurpers, feeding from the regime trough and swallowing for a free holiday, the respectful world treats the goose for what he is - a bullying coward with zero integrity!!
Anonymous said…
You're the goose, Buster. Not a single original idea in this little rant. The opposition have stopped arguing because there's nothing to argue about. Read the Constitution. Look around you in Fiji. It's onwards and upwards and all you can do is vent. Zero impact!
Anonymous said…
Croz
What part of 'the idiot Bainimarama doesn't set the agenda' does your dimwitted dictator mate not understand? The poor fool has zero impact. A bit like your misguided blog?
Tin Con Beef said…
http://en.wikipedia.org/wiki/Ad_hominem
Questions said…
Croz,

Please correct me if I've read it wrong but the current government can make any changes it wants to the constitution right up until the first sitting of the new government in 2014. I assume they will only make minor changes as they assume to win the election and remain in power for another 4 years. But if they look like losing the election or do in fact lose the election does this not mean they can make changes to suit themselves before the new government starts ? Could hey change it to remove the new government before it even starts ?

Your heading reads checks and balances but they dont seem to start until after the elcection.
Heart of Darkness said…
'Heart of Darkness' : complete and unabridged. A steal at F$11.95 in the bookshop of notable, local department store. The only decent bookshop in a Fiji desert for readers. A compulsory read especially when we learn that Joseph Conrad wrote it based on his personal experience of a visit to the Congo (then Belgian)."The first twentieth century novel". Its protagonist - an Ivory Dealer,who is "the emobodiment of corruption, decay and exploitation". Why does this all feel so familiar? Even to the point where it is suggested that the narrator, Marlow, "is forced to look into his own soul and reassess his values." A reigning climate of malevolence and tyranny: the darkness is both moral and physical. A perfect fit, somehow.

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