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.