Jioji Kotobalavu
The commitment by Fiji’s interim government for a list proportional representation method in the new parliament is welcome news for everyone.
Also encouraging is the news that the Fiji Government intends to review and change the country’s system of elections to the party provisions in the 1997 Constitution relating to the formation of government.
This is to enable political power sharing by all communities in a National Unity Government, led by an executive President, who will be directly elected by the people, and with the ministers in cabinet drawn from all political parties represented in Parliament and in direct proportion to the number of their elected MPs.
Party list proportional representation
Evidence drawn from New Zealand’s application of the closed party list proportional representation method (with the whole of New Zealand as a single national electorate) in its Mixed Member Party electoral system has clearly proven that PR (Proportional Representation) produces three very good outcomes.
Voting results are fairer than under the “winner takes all” method of determining voting outcome. There is a better representation of all communities and women. And voting for the party list is based on one person, one vote, and with each vote bearing approximately equal value. For Fiji, there are two further advantages.
The PR system is easy for the people to understand and, very importantly, it will make it possible for Fiji to move away from the ethnic-based communal system of representation and voting, which the country has had since independence in 1970, and which has directly led to politically divisive ethno-centric extremist and confrontational politics and political instability.
It has created mono-ethnic political parties whose sole interest is to appeal to the primordial instincts of communal loyalty for voter support. It is also the main contributory cause of the disappearance of multiracial parties like the Alliance Party under Ratu Sir Kamisese Mara, which provided a stable government for Fiji for close to 17 years after independence.
The Fiji Labour Party was an integrated multiracial party when it was formed in 1985. But it has since veered towards the Indo-Fijian end of Fiji’s political spectrum, pulled in that direction by the political dynamics of ethnic-based representation and voting.
Indigenous Fijians or i-Taukei, now comprises more than 57% of Fiji’s total population and this was projected in the 2007 Population Census to increase further to 68% by 2030.
The census also projected that by 2030, indigenous Fijians will also be the numerical majority in provinces like Ba and Macuata. With this absolute numerical majority, indigenous Fijians no longer need political protection in the form of guaranteed communal-based representation.
Fijian political leaders had insisted on reserved communal seats in the lead-up to independence in 1970 because at the time, the i-Taukei were a minority, making up only around 45% of Fiji’s population. But this is no longer the case.
As long as indigenous Fijians are politically united and turn out to vote at election times, they can expect to win majority representation in Parliament in future elections and provide national leadership and control of government.
However, what we have also learnt from our political experiences since 1970 is that a numerical majority government that is confined to only one or two of Fiji’s ethnic communities has not really been able to win and enjoy the confidence of the people.
And, by “the people”, I mean not just individual citizens but more importantly all of the country’s communities. So for Fiji, the critical challenge in constitutionally rebuilding our country is to move towards a system of elections and formation of government that will politically integrate and bring together the people, both as individual citizens with equal fundamental rights and also as communities with equal opportunity to be represented and to participate in cabinet in governing the country.
The consociational power sharing through the mandatory multi-party cabinet arrangement under section 99 of the 1997 Constitution was an attempt to bring the communities together but it was politically unworkable in the long run because it gave no real political advantage to the entitled party.
And further, since only parties that win at least 8 seats can qualify to be invited, the minority communities of the General Electors with their allocated three seats and Rotumans with one seat in Parliament were discriminated against as they would never qualify as an entitled party to be in cabinet in their own right.
A government of national unity
The adoption of the proportional system of representation is, therefore, a very important positive first step in moving Fiji towards a system of political power sharing in the form of a voluntary coalition government of all willing parties represented in Parliament. It would be a Government of National Unity [GNU].
This is the only form of government that would genuinely enjoy the confidence of all communities in Fiji. It is also the only realistic, effective and efficacious way of promoting national unity and solidarity in Fiji.
In other countries with multicultural civil societies, parliamentary elections and the formation of democratically elected governments take place within the framework of an integrated homogeneous polity or political society founded on individual citizens endowed with equal fundamental human rights.
Fiji, however, as a polity, is uniquely different from these other countries. This is because right through from Fiji’s colonial period with the British Administration’s governing strategy of “divide and rule”, and then continuing on after independence in 1970, Fiji has always been constituted not as a single integrated political society, embracing all of its citizens as individuals, but as separate communal political enclaves.
Under the 1970 Constitution and continued under the 1997 Constitution, Fiji, politically, was divided up into the Fijian, Indian, General Electors and Rotuman communal enclaves. So long as we continue this political separation, we can never achieve national unity and solidarity in Fiji.
For this reason, the undertaking by the Interim Government for new constitutional arrangements is to be welcomed. In this regard, we need to encourage the government to adopt a roadmap that will ensure genuinely free, fair and openly competitive elections, the preparation and promulgation of new constitutional arrangements in a manner that will ensure their legal validity and political legitimacy, and also to use this opportunity to lay a more secure and enduring foundation for the long-term success of constitutional democracy and long-term political stability in Fiji.
On this last point, we need to encourage the Interim Government to lead the people of Fiji in also considering other new constitutional arrangements that would better suit our country in addressing its long term need for political stability and national unity and solidarity.
In the new elections system, adopting the PR on its own is not enough. The new electoral regulations ought also to include the requirement that all political parties that want to take part in the elections must present a multiracial slate of candidates, reflecting the multicultural character of our society, and a fair number of women candidates.
In the formation of government, this is an opportune moment to discard the numerically based “majoritarianism” principle and provide for voluntary power sharing through a voluntary coalition of all parties in Parliament; in effect, a Government of National Unity (GNU).
And for the GNU to be workable as a broadly representative, i0ncl usive, united, and stable government, there are two crucial ingredients.
Elected executive president
Firstly, it has to be centred in, and led by, an executive President combining the two positions of Head of State and Head of Government. The incumbent would be elected directly by the people. However, once elected, the executive President would draw Ministers for the GNU Cabinet from all willing political parties in Parliament directly in proportion to the number of their MPs.
This would be a hybrid presidential and parliamentary system. Neighbouring countries such as Kiribati, the Marshall Islands and Nauru have adopted variations of this hybrid presidential/parliamentary system of government in their constitutions.
Secondly, decision making in the GNU cabinet is to be strictly by consensus in accordance with the customary norms and values that normally guide the Great Council of Chiefs [GCC] in its proceedings.
Samoa practices the same traditional customary approach in its cabinet decision making processes and it is this which explains why it has enjoyed political stability and why we do not see in this country the kind of politically divisive and destabilising “votes of no confidence” against the incumbent government, which has become a regular occurrence in some of the countries in the region.
For Fiji’s GNU, it would be prudent not to adopt the mutual veto decision making procedure in the power sharing cabinet in New Caledonia. It has led to much political instability there.
Finally, whilst the GCC no longer has a role in appointing the President, it can be assigned a constitutional role as advisory to the executive President and a guardian role for the welfare of all communities in Fiji.
If the Senate is to be maintained, it can be reconstituted as a representative chamber of communities, with members appointed by the GCC and cabinet.
Ideal system for Fiji
A GNU-led by an elected executive President would, I believe, be ideal for Fiji. It would be politically workable and bring all the communities together. It is the best way of forming government that would enjoy the confidence of the people and, therefore, lead to long-term political stability.
This is what Fiji needs for inter-racial harmony and national unity, and in creating an environment conducive for economic growth and development.
For the presidential elections, it is expected that a i-Taukei would be elected. But all candidates would have to appeal across all communities for voter support.
Since the executive President would be empowered to appoint his or her Vice President from Parliament, there would be very good prospects for the appointment of someone from the minority communities.
With all ministers drawn from Parliament, one would have to be assigned to serve concurrently as Leader of Government Business [LOGB] in the House of Representatives and another in the Senate.
For the first time in its history, Fiji would have an executive government that is truly representative of the people in its broadest sense. And because it will have the confidence not only of the majority of individual citizens but also of Fiji’s communities, the GNU will have the highest degree of political legitimacy.
Political dialogue and public education
To ensure the validity and legitimacy of the 1997 Constitution review and reformulation process, the most crucial step would be the convening of a Political Dialogue, comprising the Prime Minister and other representatives of the Interim Government, and parliamentary representatives of the three political parties that won seats in the May 2006 elections: the SDL (Soqosoqo Duavata ni Lewenivanua, the FLP (Fiji Labour Party) and the UPP (United Peoples Party).
As the convenor, the President may wish to consider on the advice of the Prime Minister and cabinet the appointment of an independent chair. Here, taking advantage of offers of assistance from Fiji’s overseas friends will greatly facilitate international acceptance of the consensus outcome of the Political Dialogue and with that, their lifting of current embargoes against Fiji’s membership of the Forum and the Commonwealth, and their removal of restrictions on development assistance and entry into their countries.
In their meetings last year, I have noted that both the Forum Leaders and the Commonwealth Heads of Governments publicly expressed a readiness to provide all needed assistance by Fiji in facilitating this political dialogue process and the implementation of its consensus agreement.
Donors have also stated their willingness to work with local NGOs, if supported by the interim Government, to promote awareness and understanding among the general public on all relevant governance issues.
What I sincerely hope the Political Dialogue will achieve as a consensus agreement is a roadmap focused on four key objectives.
Firstly, interim and transitional constitutional arrangements, without expressly or explicitly amending or replacing the 1997 Constitution, to incorporate and to try out the new system of elections and the proposals for a GNU centred in a directly elected executive President and with Ministers drawn from Parliament under a hybrid presidential/parliamentary constitutional framework.
Secondly, the holding of parliamentary and presidential elections which will be free, fair and openly competitive.
Thirdly, that simultaneous to the implementation of the new arrangements, government and the NGOs will carry out a comprehensive public awareness and education programme to embed in the people a thorough understanding of the new arrangements and generally of constitutionalism, democracy, justice, human rights, and the principles of solidarity and duty of care.
Fourthly, that after an appropriate period of trying out the new arrangements, the executive government and parliament will then mandate and carry out the preparation of a new substantive constitution to succeed and replace the 1997 Constitution, drawing from the success of the new arrangements and from the good provisions in the 1997 Constitution such as its Bill of Rights.
I believe that adopting this pragmatic and longer term approach and enabling the full participation of the people will enable us all to lay a stronger and enduring foundation for constitutional democracy and political stability in Fiji.
Adopting this two-stage approach also gets around the legal hurdles which Justice Gates, now Fiji’s Chief Justice, had given clear warnings about when delivering his judgements in the Prasad [2000] and Koroi [2001] cases in the High Court.
Commenting on the purported abrogation of the 1997 Constitution in 2000, Justice Gates said that a country’s Constitution promulgated by its Parliament as the representative body of the people is immutable and indestructible. It is not possible for any man to tear up the Constitution. The Constitution remains in place until amended by Parliament in accordance with the Constitution’s own amendment provisions.
These statements by Justice Gates clearly have a bearing on the de jure status of the 1997 Constitution in light of its purported revocation on 10th April, 2009 and it would be wise to take them fully into account in devising Fiji’s roadmap for returning the country to constitutional legality and democratically elected government.
• Mr Jioji Kotobalavu is a former CEO in Fiji’s Public Service.
