The
Bainimarama Regime has now released its 2013 Constitution for Fiji (2013 BKC).
While many
political scientists will compare it to the aborted Ghai Draft Constitution,
the more appropriate comparison should be with the 1997 Constitution which this
Regime claims to have abrogated.
[Recollect
the 2001 judgement by Justice Anthony Gates (current Chief Justice) that
constitutions cannot be so abrogated, and recollect the 2009 Court of
Appeal judgement that the Bainimarama Regime was unlawful (and so presumably is
in no lawful position to hand down any constitution to us, except by force)?]
But Fiji
will, as always, be pragmatic and not let a little legal nicety get in the way
of getting on with our lives and putting bread on the table. (Some of course
want the cake and the icing as well).
The 2013 BKC
states many good governance principles for the state executive, the legislature
and the judiciary, many of which unfortunately this unelected Regime has never
applied to itself, these last seven years.
Unfortunately
also for the long run, the good elements are negated by fatal weaknesses in the
process of the making of this constitution, allegedly unchallengeable clauses
on total immunity, the absence of any requirement to make past decrees
consistent with the 2013 BKC, the removal of even any symbolic attempt to
discourage future coups, and lack of respect for the UN Declaration on the
rights of Indigenous Peoples.
Readers may
wish to browse through my January 2013 article where I suggested (somewhat
correctly in hindsight) that the Bainimarama Regime's real priorities would be
revealed by examining where their eventual constitution differed from the Yash
Ghai Commission Draft .
It is sad
that Fiji will painfully waste many more "nation years" in the
future, revising the 2013 BKC to remove its weaknesses (Part I of this
article).
Nevertheless,
the 2013 BKC presents a flickering glimmer of light at the end of the tunnel
with its electoral system, which may result in an elected parliament and
government by September 2014, if the military referees think of the nation
instead of their pockets (Part II of this article).
Part
I The 2013 BKC in general
I will not
repeat some important criticisms that other writers have already made (such as
the lack of adequate separation of the executive powers from the legislature
and judiciary) but, for the record, focus on obvious weaknesses in the process
and key changes from the Ghai Commission Draft.
The flawed
process of constitution making
The first
clause of the 2013 BKC "we the people of Fiji... hereby establish this
constitution for the Republic of Fiji" is blatantly false.
It is as
false as the first clause of their earlier bible, The People's Charter, which
stated that the 1997 Constitution would be supreme and strengthened: that
promise was negated before even the ink on the Charter document had dried.
The 2013 BKC
is also being imposed by the Military Regime after superficial
"consultations" and will be rubber-stamped by the unelected Regime's
President and then heroically "displayed" to the country by the
architects.
"We the
people" will not be asked to approve the 2013 BKC, either through a
national referendum or by the first elected Parliament, or even by a bogus
national signing exercise by which the Charter was alleged approved by the
nation.
It is
therefore a farce to require that any changes to the 2013 BKC
must require a 75% majority in the elected Parliament, and following that, a 75%
majority in a referendum.
While naive
in international law and realpolitik, the 2013 BKC mocks the "will of the
people" by stating that no changes at all may be made by any future
elected Parliament, to the immunity provisions stipulated in this 2013 BKC.
But the icing
for the Regime on this constitutional cake is that this unelected Regime may
itself make any changes it wishes from now till 31 December 2013, by a Decree
signed by the unelected President- just in case the architects have not thought
of everything.
The immunity
provisions
The immunity
provisions appear to be the same as in the Ghai Draft Constitution, but while
the popular view continues to be that the immunity covers the events from
December 2006 coup to the September 2014 elections, the immunity significantly
starts from 2000.
The 2013 BKC
restates the immunity granted by Decree 18 of 2010 (Limitation of Liability for
Proscribed Political Events) which covers the military, police and prisons
staff for events associated with the 2000 attempted coup and mutiny, and
also, "all dialogues, discussions, correspondence between the Fiji
Military Forces and the Government between September 2001 to December
2006".
The
significance of this 2010 Decree may be read here.
This Regime
is hypocritically unconcerned that their courts are finding other national
leaders and politicians guilty and sending them to jail for what at
worst are minor misdemeanours, while demanding immunity for themselves
for unstipulated actions, for a period of 14 years (with one year of that
immunity yet to come).
What has been
left out from Ghai
The Ghai
Commission was stopped from drafting clauses requiring that all past Decrees be
examined and revised if necessary, to make them consistent with their Draft
Constitution, if there was to be any continuity and consistency in the
process of law and order in Fiji from 2006. The Ghai Draft had also recommended
that cases already before the court (like the FNPF pensioners' case thrown out
by a Decree) must be continued with.
The 2013 BKC stipulates that
all past decrees from 2006 must continue in force.
The second
exclusion is the Ghai Draft requirement that immunity not be granted for abuse
of basic human rights (obvious conclusions to be drawn?).
Third, the
Ghai Draft required that the Regime give way to a caretaker government six
months before the 2014 elections. Bainimarama, however, insists on
continuing in office until the elections in which he will claims he will be
standing, for a party yet to be declared.
This makes a
clear mockery of the claim that the elections will be fair given that he has
been, and will continue dispensing taxpayers' funds left right and center,
shades of all the vote-buying scams this country has previously seen.
The fourth
exclusion is the Ghai Draft requirement that immunity be only granted to
those who took an oath renouncing their support of illegal regimes (obvious conclusions to be drawn).
The fifth
exclusion is the Ghai Draft requirement that all members of the security forces
(army, police and prisons) must take an oath that they would not obey
unlawful orders from their superiors.
These last
two requirements no doubt reflected the Ghai Commission's legitimate concern to
try to end the coup culture by explicitly discouraging the security forces from
supporting future coups: military leaders cannot implement coups without their
subordinates' support.
Cynics would
note, of course, taking these oaths has never discouraged any of the security
forces (including all our former army commanders) from supporting coups and
abrogation of constitutions- as the events of 1987, 2000, 2006 and 2009 clearly
prove.
The 2013 BKC
does nothing to help in ending the coup culture. Nearly all the military
officers, contrary to their promise in 2006 that "no military personnel
will benefit from the coup", have significantly benefited from the coup-
financially, in status and power, and comfortably continue to do so, even more
than in previous coups.
Some military
(and civilian) Ministers are now enthusiastically declaring their willingness
to stand for the 2014 elections, despite Bainimarama's 2006 pledge that
none of his ministers would stand for any future elections. (yet another of his
broken promises).
Attack on
rights of indigenous Fijians
The UN
Declaration on the rights of indigenous peoples, was verified by the General
Assembly in 2007 and may be read here.
This
declaration, while accepting the fundamental equality of all peoples, nevertheless
noted that indigenous peoples the world over have suffered marginalization
through colonialism, and recognized the need to respect and promote the rights
of indigenous peoples affirmed in historical treaties and other constructive
agreements with the state.
The UN
declaration encouraged states to enhance indigenous peoples rights through
consultation and co-operation with them (and not by force)
Article 5
states clearly that indigenous people "have the right to maintain
and strengthen their distinct political, legal, economic,
social and cultural institutions".
Just these
few references suggest that the Bainimarama Regime, through the 2013 BKC and
recent decrees, is forcing many changes on the Fijian people and institutions
in complete contradiction of the UN Convention on the Rights of Indigenous
Peoples: abolishing the GCC, removing the term "Fijian" from the
indigenous people's exclusive use, banning the use of Fijian names of political
parties, etc.)
In the long
run, such changes are futile, as the collective wishes of the indigenous
Fijians will ultimately triumph, ironically helped along by the 2013 BKC
electoral system (Part II of this article).
Part
II An interesting electoral system
The
Bainimarama Regime has claimed that they will hold elections in September 2014,
according to their electoral system, based on proportionality and "one
person one vote one value".
Of course,
this Military Regime has broken many promises before and they may do so again
with this one, or even follow Plan B formulated by one Einstein in the Regime
(no prizes for guessing who), which is to hold a bogus referendum to do away
with the 2014 Election altogether.
But if free
and fair elections are held, leading to a representative parliament and
accountable government, it will be a major improvement on the current
situation: for seven years, Fiji has suffered a government whose
practices continue to negate most of the good principles of accountability and
transparency proudly stated in the 2013 BKC.
The electoral
system
Although the
vote counting process has not been exactly specified in the 2013 BKC, the
proposed electoral system will apparently:
(a) have only
one national constituency in which all candidates will stand, and each voter
will choose one candidate (with or without a party), with one vote per person.
(b) add
up all the votes of candidates, aggregating those with political party
attachments,
(c) elect
Independents if they win at least 5% of total votes
(d) give to
each Party the percentage of the 50 seats (less Independents) equal to the
percentage of votes received, provided the party wins at least 5% of the total
votes (which will give them at least 2 seats immediately);
(e) elect
that proportional number of MPs from that Party, beginning with the person
receiving the highest number of votes, and going down the list ordered by the
number of votes received, till they have fulfilled that Party's quota.
The Member of
Parliament with the majority support of parliament would then become Prime
Minister and form government.
The
weaknesses of the electoral system (if it is indeed as outlined above) will be
that
(1) there
will have to be one massive ballot paper, with the names and symbols of
hundreds of candidates, out of which some 500 thousand voters throughout Fiji
(literate and illiterate), will (look for and) tick one name;
(2) there
will be no guarantee of local or regional representation of members of
parliament.;
(3) there is
no guarantee of reasonable representation of women, youth and other minorities
(as was in the Ghai Draft Electoral system with a Closed List);
(4) If the
bulk of the votes for any Party have been obtained by the "Leader" or
a few candidates, then the last successful MP selected from that Party to fill
the Party quota according to proportionality, may not have received any large
number of votes at all- but this weakness prevails for all proportional systems
based on open lists.
(5) In the
light of (4) above, the minimum requirement of 5% of all votes for Independents
or political parties to be elected, is grossly unfair, considering that each of
the 50 seats in the parliament would on average equate to 2% of the total
votes. This rule will discriminate against small parties and Independents who
could be important moderating influences in Parliament.
(6) If there
are small parties each obtaining less than 5% of total votes, then there will
be the head-ache of "left-over" seats in Parliament, after the large
parties had their preferential bite at the cherry.
[eg if Party
A has 50% of votes (hence 25 seats), and Party B has 30% of votes (and hence 15
seats), while the remaining 20% of votes are split between small parties each
with less than 5% of the votes who get no seats, who gets the remaining 10
seats? But there is an easy arithmetic answer to this problem: ignore all the
parties with less than 5% of the votes, Ha ha ha. So much for the
equality of all voters!]
(7)
There is one critical weakness in the 2013 BKC which was also in the Ghai Draft
Constitution: both threw out the Multi-Party Government provision of the 1997
Constitution, which guaranteed any party with 10% of the seats in parliament
(here 5 MPs), to be invited into Cabinet.
Won't it be
ironic if Bainimarama's party ends up being a large minority party, without the
majority to form government? No worries: we will have another coup. Ho hum.
The mantra of
"1 person-1 vote-1 value"
Will the new
voting system eliminate racial voting and establish "racial equality"
as the Bainimarama Regime proudly repeats at every opportunity, like a mantra?
I doubt it,
and the 2013 BKC is even worse than the Ghai Draft which also tried to hide
racial voting by rigging the size of the constituencies.
Instead of
having 25 single member open constituencies (as most political parties and
others including myself had recommended), with another 25 to ensure
proportionality from Closed Lists, the Ghai Commission Draft had four Divisions
as constituencies, banking on the subterfuge that the voting results would
therefore not reveal any evidence of racial voting (even if
there was racial voting) (my recommendations may be read here).
The 2013 BKC
has gone one step further to stipulate just one constituency,
so even more now, no one will know by examining the results, whether there is
any racial voting going on: all that observers will see, is how many votes each
candidate received throughout the entire country, from all voters, not their
racial origins.
But I suspect
that racial voting will continue in full force, despite this Regime and umpteen
grating TV advertisements calling everyone "Fijians".
The reality
is that after the voting fiasco is over, Parliament will comprise whoever is
voted for by the voters: 56% of whom will be indigenous Fijians, 38% Indo-Fijians,
and 6% Others: the ethnic proportion of Parliament will be roughly in that
proportion. (BTW: check the ethnic composition of Bainimarama's cabinet).
Despite the
Bainimarama/Khaiyum mantra repeated daily that the new electoral system is
going to ensure racial equality for Indo-Fijians, the reality will be that the
proportions of Fijians, Indo-Fijians and Others in the next Parliament will
be pretty much the same as in 2006.
One crucial
difference now will be that minority parties (for example those supported by
mostly Indo-Fijian voters), will no longer have an automatic right to be
invited into Cabinet, as they did under the 1997 Constitution.
The
Indo-Fijian supporters of Bainimarama can ponder on this interesting
consequence of the 2006 coup which was alleged to be partly to protect their
interests, apart from "cleaning up" the country (mind you, some have
cleaned up)!
Is it a New
Ball Game?
Despite the
illegitimacy of the 2013 BKC and all its weaknesses, political parties
will = pragmatically contest the elections with the electoral system being
proposed (as did Opposition parties after the 1990 Constitution was imposed on
them).
There are
many fascinating national and regional political strategies that may be
formulated for the 2014 elections, given the objective of obtaining the highest
percentage of votes in the country, and forming a coalition government (if
there are multiple parties in parliament with no one having the majority).
If the old
political parties are by some Regime skulduggery stopped from competing, a
completely new political party will be formed within months, and be just as
successful as the old ones, as the interesting magical instantaneous
replacement of the SVT by SDL in 2001, clearly shows.
There is
certainly a new ball game in town, welcomed by the international community,
with great relief.
But then
again, as has happened over the last seven years, if the military referees
think that the elections results may not be to their liking, they may move the
goal-posts again, or change the rules of the game, or even scrap the game
altogether.
But they can
still go temporarily back to the barracks for R&R and have a welcome rest
from the political war-zone and the hard work of governing the country, knowing
that there is a clause in the 2013 BKC [131(2)] giving the military not only
the responsibility for the defence and security of "Fiji and all
Fijians", but also their "well-being", which they can
always define themselves, as they have done for the last seven years.
Note that when
the military rejected the 2009 Court of Appeal judgement, they threw away the
last lawful exit strategy the Fiji courts offered, remaining in control, all
personally benefiting, while Fiji suffered for five years with the worst
economic growth record of any Pacific nation.
It is
historically inevitable, however, that some future elected Parliament will
eventually get the complete support of an ethical and professional
military hierarchy that rejects treasonous coups, and the "will of
the people" will confine this 2013 Bainimarama Khaiyum Constitution to the
dustbin of history, just as they did the 1990 Constitution.
The tedious
question for Fiji and the international observers continues: will the current
military hierarchy accept or reject the 2014 elections, which is yet another
peaceful exit strategy for them?
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