Q1. Explain the major provision of 2013 constitution? Critically evaluate.
I. Drafting
- The FGC (Fiji Government Constitution) draws much of its provisions from 1990 and 1997 constitutions and also borrows extensively from the 2012 Yash Ghai Draft.
- According to Fiji Constitutional Forum (FCF): given the markedly different drafting styles of these documents-1990 and 1997- with their formal legal language, contrasting it with the conversational tone of the 2012 Draft- the “result is an odd and inconsistent amalgam”.
- A constitution is a country’s basic law; it is therefore important that it is as clear as possible from a legal point of view.
II. Omission of women
- While the right to equality and freedom is provided for in the Bill of Rights (26), the Fiji Government Constitution (FGC) is silent on women participation in public life.
- It does not implement any special measures to increase the number of women elected in parliament or holding office in other public bodies.
- By contrast, 2012 Draft required that party lists include women in electable positions[80.3] and that the composition of public bodies “reflect the regional, cultural and gender diversity of Fiji”.
III. Free and Fair elections
For an election to be both free and fair, it must have:
- A coherent constitutional and legislative framework;
- Independent and impartial election administrators, supported by a free media and peaceful order; and
- Agreement of all political parties to participate in competitive elections.
IV. Framework
- The FGC affirms that elections will take place by 30 September 2014, and held on 17 September 2014
- It also sets out the basic structure for election including: rights to register, vote and stand for election, voter and candidate eligibility, form of the voting system (open list PR), a commission to administer the elections, rights protecting the media, and penalties for corrupt or violent electoral practices.
- Each positive provision is undermined by another negative and unnecessary provision.
- Electoral rights are granted, and can be (and are) limited by a simple decree.
- Media can report on the election. The media decree and the limitations of freedoms can be applied by law to control media behavior; and
- Political parties must be transparent and peaceful. Limitations can be drawn to define these definitions of transparency and how they are to keep the peace.
- Fortunately, under section 161 the FGC can be changed to bring the electoral provisions in line with international standards
V. Supervision
The FGC creates two important institutions for elections:
- The Electoral Commission and
- The Supervisor of Elections
- A cause for concern is the transitional arrangements for elections in the Fiji Government Constitution
VI. Consent
- For elections to be legitimate, most (preferably all) political parties must consent to participate
- Citizens in each party must make that decision themselves
- The FGC and Political Parties Decree set out positive rights to form parties and vote, as well as demands for accountable and transparent party finances
The FGC and Political Parties Decree place demands on parties, including that:
- Trade union leaders must quit their positions before standing as candidates,
- Parties must gather 5,000 signatures across the country to register.
Q2. What factors led to the Fiji First winning 2014 Elections?
‘In our new democracy’, Bainimarama told the United Nations GeneralAssembly on 28 September 2014, ‘we are all Fijians, not members of separate ethnicor religious groups. And having established a common and equal citizenry, along witha secular state, we intend to move forward together finally to fulfil our promise as anation, to fulfil our destiny’. The 2014 elections were held under the electoral provisions of a new constitution that the interim regime decreed in 2013. In several important respects, they differed markedly from their previous counterparts.
- The first was the adoption of the open list proportional representation system, replacing the alternative vote system of the 1997 constitution. In the new system, 50 seats would be chosen from a single nationwide constituency, thus dispensing with constituency boundaries. The system theoretically gives the voters, not the party, the power to choose whom they wish to vote for, but Fiji First encouraged voters to cast their votes for one person, the party leader Frank Bainimarama, to obtain the largest number of votes for the party. That is what in fact happened. Bainimarama alone accounted for nearly 70% of the Fiji First votes.
- Candidates in other parties with more votes than some of Fiji First’s successful candidates missed out because their party did not meet the required threshold. In the new system, name recognition and a national profile play a critical role. Bainimarama’s great advantage was his name recognition; for eight years before the elections, when political activity was banned in the country and freedom of speech severely restricted, his was the only name in the public domain, the only face people saw on television and in the newspapers: his and that of his attorney general.
- Another significant aspect of the 2013 constitution affecting the outcome of the elections was the lowering of the voting age to 18 years. A significant proportion of the first-time voters, around 30%, were casting their votes for the first time. They had come of age in an era of coup-inspired upheaval in Fiji.
- The third significant feature of the 2013 constitution was the abolition of communal seats. Throughout the 20th century, in fact from the very inception of electoral politics in 1904, racial representation in the legislature had been the order of the day. Fijians and Europeans were adamant that racial representation was the only viable option for Fiji’s multiethnic society to ensure that all ethnic groups were equally represented in the colonial legislature.
- In the 2014 elections, voters could vote for any candidate of their choice unhindered by racial designation.
- Bainimarama, espousing the rhetoric of non-racialism, benefitted from a de-racialized electoral system.
These were factors that led to the winning of Fiji First in the 2014 election.