Q1. Explain the major provision of 2013 constitution? Critically evaluate.
I. Free and Fair
Under the Fiji Government Constitution (and related decrees) electoral rights are granted, but can be (and are) limited by decree. This analysis explores the basis of “free and fair’ elections for Fiji under this Constitution and as claimed by the government.
II. Fiji Government Constitution vs the ‘Non-Negotiable’ Principles
On the issue of addressing the non-negotiable the Fiji government Constitution promises to achieve these goals, an expansive range of rights; open-list Proportional Representation (PR) replacing communal voting; a secular state, ‘independent’ commissions and offices to check abuses; an impartial judiciary to uphold the constitution and a transition to democratic government. However, a closer look reveals that these aspirations are subject to significant limitations and are contrary to the values of the non-negotiable.
III. Drafting
The Fiji Government Constitution draws much of its provisions from 1990 and 1997, but also borrows extensively from the 2012 Draft. Given the markedly different drafting styles of these documents – 1990 and 1997 with their formal legal language contrasting the conversational tone of the 2012 Draft – the result is an odd and inconsistent amalgam. A constitution is a country’s basic law; therefore it is important that it is as clear as possible from a legal point of view. It is often difficult to know the intention of particular provisions of the Fiji Government Constitution, especially since the promised explanatory report about the Fiji Government Constitution has not been provided yet. Fortunately, the avenue to remedy at least some of the structural and drafting problems identified in this analysis is provided by way of the section 161 transitional amendment provision.
IV. Omission of Women
While the right to equality and freedom is provided for in the Bill of Rights, the Fiji Government Constitution is otherwise silent on women, particularly in respect to their participation in public life. Of particular note, the Fiji Government Constitution does not implement any special measures to increase the number of women elected in parliament or holding office in other public bodies. By contrast, the 2012 Draft required that party lists include women in electable positions and that the composition of public bodies “reflect the regional, cultural and gender diversity of Fiji”. Further, the 2012 Draft provided that the State could adopt special measures to protect or advance people who were disadvantaged. This can be juxtaposed against a provision in the Fiji Government Constitution expressly permitting legislation that ‘excludes persons from holding public offices’, which could be used to exclude women.
V. Framework
- Electoral rights are granted, and can be (and are) limited by a simple decree;
- Citizens have a right to vote and stand for election. Trade union leaders are restricted from being candidates;
- An electoral commission will administer the election. It is controlled by the sitting Prime Minister, who holds office until that post is filled following the election;
- 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.
VI. Supervision
The Fiji Government Constitution creates two important institutions for elections: the Electoral Commission and the Supervisor of Elections. The chapter-by-chapter analysis explores the independence of these institutions and highlights the significance of the Prime Minister’s control over appointments, removals and remunerations. The more immediate concern, however, is the transitional arrangements for elections in the Fiji Government Constitution. Until the Prime Minister (through the COC) appoints members the electoral bodies, the permanent secretary for elections will perform their functions. This affects the ability to administer General Elections ‘freely and fairly.’
VII. Consent
For elections to be legitimate, most (preferably all) political parties must consent to participate. Citizens in each party must make that decision themselves. A constitution can provide rules to protect parties from outside interference and enable them to campaign to be elected. The freer they are to operate in a fair playing field (within reasonable limits to prohibit corrupt or violent conduct), the more likely they are to participate.
Q2. What factors led to the Fiji First winning 2014 Elections?
Fiji’s general elections of 17 September 2014, held eight years after Fiji’s fourth coup, saw some significant firsts, generated largely by new constitutional arrangements. These included a radically deracialised electoral system in which the entire country forms a single electorate and utilizes open-list proportional representation. This system, brought in under the regime of coup leader Voreqe (Frank) Bainimarama, was designed first and foremost to encourage a shift away from previous patterns of electoral behavior which, due in large measure to provisions for communal electorates and voting, were inevitably attuned to communal political identities and the perceived interests attached to them. Elections under such a system certainly allowed ‘the people’ to speak, but in a way which gave primacy to those particular identities and interests and, arguably, contributed to a political culture that saw democracy itself severely undermined
In the process. This was illustrated only too clearly by the recurrence of coups d’état between 1987 and 2006 that all revolved, in one way or another, around issues of communal identity expressed through discourses of indigenous Fijian (Taukei) rights versus those of other ethnic or racial communities, especially of those of Indian descent. These discourses remain highly salient politically but, under the Constitution promulgated by the Bainimarama regime in 2013, they are no longer supported institutionally via electoral arrangements. The elections of September 2014 held under the new system delivered a resounding victory to Bainimarama’s newly established political party, Fiji First, founded on a modernist ideology repudiating the politics of race or ethnicity and emphasizing equality and development for all communities in Fiji. However, the notion that election results indicate a clear and unambiguous statement of political intent on the part of the electorate as reflected in the phrase ‘the people have spoken’ is rather simplistic. Although this phrase does emphasize the most basic right of citizens in a democracy, or at least a majority of them, to choose their own government, the people rarely speak with one voice. After all, a key feature of liberal democracy is that it creates space for the expression of contested ideologies, strategies, visions and hopes. There is also the question of the conditions under which the people speak a particular issue for Fiji’s 2014 elections. Freedom of expression and political opposition had been tightly constrained during the period in which Bainimarama’s military government had ruled by decree, and remained problematic during the election campaign. These circumstances favored Fiji First, which is, when all is said and done, the product of military power.