The Election-Constitution Dilemma

(-o) Brij Lal on Why Only Parliament Can Amend the Constitution

Condensed from Fiji Sun article 2.2.08 . My emphasis.

Co-author of the Reeves Commission report which led to the 1997 Constitution, Professor Brij Lal, says only parliament can amend the Constitution. Anything else will have no legal validity. He says there are no shortcuts. The best course of action for the Commodore would be to put his proposed electoral changes before the President’s Forum for discussion by all stakeholders. Any consensus reached there could then be inserted into the constitution by a recalled parliament.

We know that the High Court has legitimised the appointment of the interim administration by the President through reserve powers derived by convention under common law (and that this ruling is being challenged in the Court of Appeal by ousted PM Laisenia Qarase) but the key question today is: How can the constitution be amended without a parliament? There is a constitutional crisis.

The current government says it wants to restore democratic rule but this can only be done by returning the nation to the polls. It is committed to elections but wants to amend the constitution so that the new electoral system is used.

Already the new electoral system has been supported by all the political parties. It is a fact the matter will be discussed at the President’s Political Dialogue Forum.

Former CEO of the PM's Office, Joji Kotobalavu offers a solution that may be acceptable to all parties:

"Once political consensus is reached on this new system of national elections, the President can invoke his emergency powers under the Constitution to reconvene the dissolved Parliament solely for the purpose of suspending the current electoral and multi-party provisions of the 1997 Constitution and to adopt the new system for the next elections.

The reconvened Parliament could also formalise other political agreements such as the ratification of the President’ promulgation on immunity, and the formation of a government of national unity after the elections, to bring about national unity and reconciliation, and, in conjunction with that, to undertake a comprehensive independent review of Fiji’ Constitution in all aspects.

This, said Prof Lal, is the only constitutional way to amend the constitution when parliament had already been dissolved, but if the Government's chief legal adviser, the Attorney General, thinks there is another way, he must tell the public.

Read the Constitution at this site
http://www.unescap.org/esid/psis/population/database/poplaws/law_fiji/fiji_004.htm

(+oB)... But What a Constitution! Fact and Opinion
Crosbie Walsh

The Constitution Review Commission whose recommendations, after wide consultation and with some changes, became the 1997 Constitution Amendment Act, was "commissioned" by the Great Council of Chiefs in the aftermath of the 1987 Coup and the even more racially lopsided 1990 Constitution. The commissioners were New Zealander Sir Paul Reeves, ANU academic and former Fiji resident Prof. Brij Lal, and the late Tomasi Vakatora. Their recommendations were considered by the then PM Sitiveni Rabuka and the Leader of the Opposition, Jai Ram Reddy, unanimously endorsed by the Great Council of Chiefs, debated by a joint parliamentary committee, and finally put to the House for approval.

The preamble of the Constitution states (my emphasis): "In the interpretation of a provision of this Constitution ... regard must be had to the context in which this Constitution was drafted and to the intention that constitutional interpretation takes into account social and cultural developments, especially (a) developments in the understanding of the context of particular human rights; and (b) developments in the promotion of particular human rights."

Last Monday I sat down to re-read the 1997 Constitutional Amendment Act partly to see how the "context" had shaped the law but mainly to see whether Brij Lal or Voqere Bainimarama was correct. Could a fair and free election be held without breaching the Constitution, or could it not? Perhaps there was some legal loophole or ambiguity to support Bainimarama's position. Several hours later I was in no doubt. Elections along the lines proposed by the Interim Government can only be decreed by Parliament. Any other way is in breach of the Constitution. Brij Lal is correct.

So, where does this take us? One view, which supports the Interim Government position, is that the electoral system, and much else in the Constitution, could well breach basic human rights. Most people in Fiji accept the need to protect indigenous Fijian (and Rotuman and Banaban) "first nation" rights pertaining to land and custom, and even, within limits, to the retention of a parallel system of government, as spelt out in the Fijian Affairs Act, Fijian Development Fund Act, Native Lands Act, Native Lands Trust Act and other Acts, but their implementation should be transparent, and not used -- as they have so often been -- as a means to protect and embed the power and privilege of sections of the Fijian elite under the guise of protecting the interests of ordinary Fijians.

The constitution's political provisions are another matter altogether. They affect citizens of all communities; Fijians no more than others. Major changes are needed at all levels of administration: provincial, municipal and national. When we say all citizens are equal under the law we should mean with respect to all constitutional provisions other than those excepted .

But almost all provisions in the Constitution dealing with the executive, legislative and even some judicial functions of government, from the appointment of the President and Vice President, to representation in the House of Representatives and Senate, the drawing of election boundaries, the alternative vote system and elections; the many powers of the Great Council of Chiefs, the appointment of senior judges, and the provisions for amending the constitution, to a greater or lesser extent, under the circumstances prevailing in Fiji for the past several years, entrench Fijian paramountcy, potentially to the detriment of other communities. And this paramountcy is by no means shared equally from the top to the bottom of Fijian society. A constitution which guarantees that all are not equal under the law makes other references to human rights sound rather hollow.

By "under the circumstances prevailing in Fiji for the past several years" I mean the pervasive and universally dominant influence of extreme Fijian nationalism, reinforced by religious extremism, in almost all spheres of public life. In the SDL Government where supporters of the Speight coup were made cabinet ministers, and a Minister referred to IndoFijians as "weeds" to be rooted out and sent to India. In Senate where religious extremists like Tomasi Kanailagi held sway. In the leadership of the Methodist church. In a Great Council of Chiefs led by equally rabid nationalists. In the absence of an effective parliamentary opposition, thanks to the failure of the "multi-party Cabinet" clause in the Constitution, in large part brought about by Qarase's refusal to allow Chaudhry in his cabinet, despite an Appeals Court and Supreme Court ruling. In ethnic Fijians heading almost all government ministries and departments. In the absence of transparency and high levels of favourism and corruption. In the general ignorance of political realities and apathy by the public. In the Indo-Fijian population's fear of retaliation. And, last but not least, by a not very vocal fourth estate. In other "circumstances" most Constitutional provisions could have produced a fair and just society; in the particular circumstances of the 1990s and early 2000s, they could not. Democracy, which the SDL called a "foreign flower" not suited to Fiji, never stood a chance.

Check reinforces check, building impregnable barriers against change to the Constitution. The President and Vice-President are appointed by the Great Council of Chiefs (GCC) following consultation with the Prime Minister. The PM and Cabinet are appointed by the President, acting on his own judgment, from the party with the confidence of the House. The President appoints as Leader of the Opposition the MP who, in his opinion, would be acceptable to the majority of MPs in the opposition party or parties. [The ousted Leader of the Opposition's party had two seats!]

The upper house or Senate consists of 32 unelected members. All are appointed by the President on the advice of others: 14 on advice from the GCC; 9 on advice from the PM, 8 on advice from the Leader of the Opposition, and one on the advice of the Council of Rotuma.

The powerful Great Council of Chiefs consists of 55 unelected members: three each are nominated by the 14 provinces (irrespective of population size); 3 by the Council of Rotuma, and 6 by the Minister of Fijian Affairs in consultation with the President. The President, Vice President, PM and 1987 coup leader Sitiveni Rabuka are members.

The Chief Justice is appointed by the President on the advice of the PM. The CJ presides over the Supreme Court that deals, among other things, with "any matters arising under the Constitution or involving its interpretation." The Election Boundaries Commission and the Electoral Commission are appointed by the President after consulting the PM and Leader of the Opposition. The chairperson in both cases is a judge.

Parliamentary representation derives from fixed communal seats (17 rural Fijian; 19 Indo-Fijian, one Rotuman and three General voters) based on provinces (which serve few other purposes, except for Fijians) and six urban Fijian and 25 Open seats. The boundaries, the number and type of seats, and the system of voting is inflexible and grossly unfair, especially to urban Fijians and Indo-Fijians. One wonders whether such an unequal and unfair electoral system breaches UN declarations on human rights.

Despite these provisions, a multi-ethnic government led by Mahendra Chaudhry's FLP won the 1999 election. Speight and Qarase sought, and many in today's opposition seek, to prevent this ever happening again.

To change this system within the Constitution requires a specially announced bill to be read three times in the House of Representatives and to have the support of at least two-thirds of the members in the House and the Senate at its second and third readings. Sixty days must separate the last two readings.

This may seem not unreasonable. It should not be too easy to change a constitution, though election system details should not need to be enshrined in the Constitution. One might have thought principles alone would have sufficed, with details left to subsequent legislation. But the story does not stop there.

The Bill, even with this support, can be vetoed by "certain members". It still needs the support of 15 of the 23 Fijian MPs, 13 of the 19 Indo-Fijians, and 2 of the 3 General Voter MPs. Given that rural Fijians and General Voters are over-represented, it seems unlikely that their MPs would vote for a fairer system that could see them out of job.

Which takes us back to the "context" within which the Constitution was drafted and accepted. The dominant Fijian leaders refused to accept the possibility of a non-Fijian president or vice-president; they wanted to further entrench Fijian land and sea ownership; special assistance for Fijians to compete in business; and special mention of Christianity. The Constitution's preamble defers to "the enduring influence of Christianity in these islands and its contribution, along with that of other faiths, to the spiritual life of Fiji".

[The Methodist Church submission to the Reeves Commission wanted much more: Fiji to be declared a Christian state; a ban on Sunday work; Christian teaching to be taught and safeguarded in government; no other ethnic group to be allowed permanent residency in Fiji, and provision, also within the Constitution, for the safeguarding of Fijian "values, religion, culture, their land and sea." (* Tuwere, 46: 1997). Most, but thankfully not all, Methodist Church leaders were core supporters of the 1987 and 1990 coups. As the religious element in extreme Fijian nationalism that provided the "foot soldiers" for these coups, they must bear much responsibility for the bigotry, intolerance and inhumanity which has allowed Fiji's "coup culture" to fester and flourish. Their thoughts have no place in a democratic constitution.]

Non-Fijians (mostly non-Christians) had little choice. Under the 1990 they had limited rights; under the new constitution they would in some respects be second-class citizens, but their rights appeared more protected. This is the "context" of the 1997 Constitution. Its prime cause and effect was not to advance democracy -- or establish parliamentary (sic!) paramountcy -- but to draw the fangs from Fijian ethnic and religious extremism, ensure Fijian paramountcy, give non-Fijians an acceptable recognized place in the country, and create the political stability necessary for economic and social advancement.

In a healthy democracy (which the Constitution claims Fiji to be) one particular human right is that one person's vote should be worth no more or less than any other person's.

The role of an unelected, "aristocratic-bureaucratic" body like the GCC would appear to have no proper place in the running of the state. Its role should be restricted to Fijian affairs, as indeed was long ago intended. It has no mandate from or over others, and should, in my opinion, play no part in national politics.

Provinces (today's approximations of pre-contact Fijian political units, the yasana) are the geographic strongholds of the chiefs and the units used for the Fijian administration. They are vastly unequal in population size and have no meaning for non-Fijians. They are an unsatisfactory and undemocratic way to determine parliamentary seat allocations.

Bainimarama is right in wanting a truer democracy but I don't see how he can do it without breaking the Constitution. The only legal way out would seem to be along the lines suggested above by Joji Kotobalavu: persuade his opponents to change the voting system (and later conduct a further constitutional review) after the elections. There could then be an election in December followed by the agreed-to changes; and a new election, based on the new system, soon afterwards.

For this ever to happen, much is being asked of the President's Dialogue Forum, and the international community. The EU, Commonwealth, Forum and particularly Australia and New Zealand will need to lean far more heavily on Bainimarama's opponents than they have on Bainimarama. How each party acts will tell us much about the true value they attach to democracy.

* Ilaitia Tuwere "The Church State Relation in Fiji", pp25-52 in Brij Lal and Tomasi Vakatora (eds), Fiji in Transition, Vol. I.1997.