September 10, 2013
Prof Wadan Narsey: The 2013 Bainimarama/Khaiyum Constitution: the darkness and the light
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?