Thursday 10th January 2019
Submission to the Standing Committee on Justice, Law and Human Rights – Code of Conduct Bill 2018 (33 of 2018)
Thank you very much Honourable Chairman for allowing the National Federation Party to make submissions on this very important piece of proposed legislation.
We regret that, as usual, we have been given a short time to make submissions – and even then, the time for our appearance before this Committee has been moved forward by a day. This means that we have less time to consult our members and advisers. If consultation is to be meaningful, the Committee has to review its process to allow sufficient time for clear thought to be given to submissions.
NFP agrees that a Code of Conduct is needed for officers such as the Head of State, Prime Minister, Cabinet Ministers, Assistant Ministers, Speaker of Parliament, Members of Parliament and heads of organisations as listed in Schedule 6 of the Bill. We will come later to the need for more inclusions. We believe in the principles of transparency and accountability, and it is our belief that a proper legislative framework is key to achieving these.
However, we have strong reservations about the Bill in its current form. In short:
- the rules governing the Commission mean it will be anything but accountable or transparent. Everything it does will be shrouded in secrecy
- the possibility that a complainant can be punished for filing a “malicious complaint” means that people will be discouraged, not encouraged, to lodge complaints
What this means is that the Code of Conduct Act (as it will become) will be an exercise in window-dressing. It will look good on paper – but in practice it will be a toothless tiger against the people it should control, while being a threat to the people who complain.
Some of our concerns are set out below: –
The definition of “appointing authority” is vague. It is not clear, for example, who is the “appointing authority” for MPs. Who is the “appointing authority for Ministers? Is it the Prime Minister, or is it the President?
The person who is the “appointing authority” for the purposes of each Schedule should be stated in the Schedule.
Anonymous Complainants[Section 10 (3)]
Owing to Fiji’s complex political climate, the majority of people are afraid to lodge complaints against people in positions of authority for fear of victimization and prejudice. Even in the course of the election campaign we came across several people who witnessed breaches of the Electoral Act but were too afraid to come forward “on the record” to give evidence about them.
It is true that, if an anonymous complaint is received, it is sometimes hard to investigate if the complainant will not identify himself or herself to give the relevant evidence. But that is not always so. Sometimes the truth of a complaint can be established through other sources.
Section 10(3) operates as an absolute bar against anonymous complaints. That is unnecessary. The Commission should not be restricted from investigating a complaint merely because it is anonymous. If an anonymous complaint cannot be investigated for lack of evidence it can be dismissed. But it should not be dismissed just because it is anonymous.
We submit that s.10(3) should be deleted so that the Commission has the power to investigate anonymous complaints if it wishes to do so.
Grounds on which the Commission will not investigate a complaint[Section 12 (1, 2)]
This section discourages transparency. It does not encourage it.
Clause 12(1)(b) allows the Commission to dismiss “malicious” or “politically motivated” complaints. If a complaint is “malicious” that means it is not made in good faith (see s.12(1)(a) so there is no need to for reference to a “malicious” complaint.
The suggestion that a complaint should be dismissed because it is “politically motivated” is unusual. There is no need for this. This means, for example, that if there is a clear complaint that a Minister has been, say, acting inappropriately with a lobbyist, even if the evidence is clear and the matter easily capable of investigation, it can be dismissed because, say, an Opposition Member of Parliament or a person who is a member of an opposition political party made the complaint. Worse, after making the complaint, that person can be prosecuted!
The same is true about complaints which are allegedly made for the purposes of “discrediting” or “causing reputational damage” to the subject of the complaint. There seems to be a disconnect with clause 5 of the Bill that requires the commission to conduct its “investigations in private”. If this is the case, the only way that a complaint to the commission will cause “reputational damage”, is if there was public disclosure.
The motivation for the complaint is irrelevant. The substance of the complaint is what is important.
Next, (s.12(1)(c)) the Commission will not investigate a complaint which has been disclosed to any other person or entity apart from the Commission. This means, for example, where a complaint has first been aired in the media, the Commission will then say “I cannot investigate it”.
This section also means that even if an allegation is raised in Parliament – the people’s house – the Commission can say “I cannot investigate it.”
This is the opposite of transparency. Institutions like the media and Parliament should play a critical role in monitoring the accountability and transparency of public officials. If a complainant chooses to go to the media to highlight a complaint, the Commission should not be barred from investigating it.
Finally, the suggestion that the Commission cannot investigate because an investigation would be “inappropriate or inexpedient” leaves wide open the circumstances in which the Commission can ignore complaints.
The Government continues to be obsessed with “political motivation”. We have seen from its many public responses to criticism the accusation that critics are “politically motivated”.
The Government changed the rules to prevent an Opposition MP being the chair of the Public Accounts Committee of Parliament because it accused the then chair (our leader, Prof Biman Prasad) of “political motivation”.
Now this obsession is finding its way into laws about transparency and accountability.
Now a person can actually be prosecuted because the Commission forms the view that a person’s complaint is “politically motivated” or designed to discredit or defame the subject of a complaint. There is no need for this because, according to the Commission’s own rules, nothing will become public anyway. So if a complaint is made, no-one else will hear about it. How can a person be “discredited or defamed” except to the members of the Commission?
So this section will achieve the exact opposite of transparency. It will make people fearful of making complaints.
The whistleblower protections in Section 13 Part 5 are meaningless. They should, for example, protect civil servants who witness and wish to report on unlawful actions of Ministers. In theory that civil servant is protected from dismissal or demotion.
In practice, however, all that has to happen is for the Commission to find that a civil servant’s complaint is “malicious” or “politically motivated” and the civil servant loses all protections under s.24. Then the civil servant can be prosecuted under s.13!
The tone and content of these provisions are a painful example of how legislation has been framed in this country for the last 12 years, with the sole objective of discouraging genuine public dissent within the legal framework, as well as acting as a Sword of Damocles and a deterrent for raising genuine grievances for fear of victimization.
The above provisions need to be comprehensively reviewed, having regard to the need for genuine transparency and accountability. The Government needs to go “back to the drawing board” and re-think the purpose and effect of these provisions.
Disclosure of the outcome of investigations
If the Commission is to be truly transparent and accountable, it must disclose the outcome of its investigations. It is fair that any such disclosure or reporting should balance the rights of an individual against the public’s right to know about matters under investigation. There should not be an absolute bar on disclosure. The Commission should have the right to report on the outcome of investigations having regard to the above factors. See for example, the rules for disclosure of investigation outcomes in Australia:
Extension of Code of Conduct[Schedule 6]
Schedule 6 omits very important taxpayer funded organisations such as the Chairs and Chief Executive Officers of Fiji Sugar Corporation and Fiji Broadcasting Commission. These are either fully owned Government Commercial Companies or continue to be funded by taxpayers. For example, FSC, to all intents and purposes is now fully controlled by Government. FSC owes over $170 million to Government that was guaranteed by Government. Under FSC’s 2018-2022 Strategic Plan (not yet made public) FSC is seeking the conversion of loans into shares – in other words, writing off the debt.
Similarly, Fiji Broadcasting Commission is given $11.3 million annually as a so-called “Public Service Broadcast” grant. So, whatever these entities may be called, they are in reality no different from publicly-funded statutory authorities.
To review schedule 6 to include Commercial Statutory Authorities and Government Commercial Companies who receive significant funding from Government. In essence, an extension of the Code of Conduct Bill to include people who are charged with managing large sums of taxpayer money to fund their organisations.
Lobbyists[Schedule 1 (9)]
The provisions in relation to “lobbyists” seem to be an afterthought. First of all, there is no definition of what a “lobbyist” is. This could be an NGO representative seeking law changes, or a business seeking incentives for a particular industry. Lobbyists are therefore not necessarily a bad thing. But the provision is meaningless until the law defines what a “lobbyist” is.
The Bill must define the term “lobbyist” to give this provision any meaning.
References to Code of Conduct for Lobbyists in other jurisdictions:
- Australian Government, Department of the Office of the Prime Minister—Lobbying Code of Conduct (2013) in which the Major Learning was that a Registry for Lobbyists was established containing their names, contacts and the company/entity that they represent.
- In the State of Alabama Title 36 Section 21 Part 1 in which they provide a proper definition of the word “Lobbyist”.
- New Zealand study on the dangers of unregulated lobbyists (Tyler, 2015).
Declarations to be made public
We strongly recommend that the declarations made by the Executive and Members of Parliament are registered with the Secretary General and made public.
In essence, this would limit what this Bill would deem as “frivolous” or “politically motivated” complaints, as having access to information such as this, complainants are able to fairly adjudicated the authenticity and correctness of a claim before bringing it before the Commission.
Conclusion – a toothless tiger
The end result of the Code of Conduct is that the Government will promote the Commission as an example of so-called transparency and accountability. However in reality the Commission will be a toothless tiger – and will be seen as such. This will only encourage greater cynicism about transparency and accountability, which is dangerous in a country such as Fiji where democracy, good governance, accountability and transparency are not well-established concepts.
The Commission has few powers against those it is supposed to watch. Complaints can be easily dismissed. Worse, complainants can be prosecuted or victimised.
A Code of Conduct law, and an Accountability and Transparency Commission, should set the standard for good governance. The people should be confident that there are laws and institutions that promote good governance. This law will promote the exact opposite sentiment. No-one will report anything to the Commission for fear of being victimised.
It will mean that complaints about public officials will continue to find their way to what is left of the independent media or to unregulated social media where important information on corruption and abuse of power are mixed with half-baked rumours and untruths. So, in short – no change.
With that, we thank you Honourable Members for your time and we hope that our concerns are taken into consideration and are reflected in the Committee’s Report.
Hon. Pio Tikoduadua – NFP President
Seni Nabou – NFP Vice President
Kamal Iyer – NFP Administrator
Apenisa Vatuniveivuke – NFP Youth
Dylan Kava – NFP Youth