Request for what is genuine
Opinion by Professor Biman Prasad
The Fiji Times, Saturday, June 04, 2016
Genuine parliamentary democracy is a prerequisite for sound and sensible economic policies vital for genuine economic growth and not the consumption-driven economy Fiji is witnessing.
Most importantly the people must enjoy unfettered fundamental freedoms. Unfortunately, this is not the case. The imposed 2013 Constitution under which the 2014 general election took place was never intended to promote genuine democracy in Fiji. In fact I
believe the purpose and intention of the 2013 Constitution was to ensure those who ruled during the military regime continued into power after the 2014 election.
Decrees in force
Regressive and draconian decrees are still in force. The 2013 Constitution is subservient to these decrees, even Chapter 2, the Bill of Rights. So the claim that the Constitution is the supreme law of the land is farcical.
The Constitution prohibits any legal challenge to the validity of the decrees and promulgations made between December 5, 2006 and the first sitting of Parliament, which was October 6, 2014. And no decisions made under the decrees and promulgations can be challenged.
Section 173 (subsection 3) of the Constitution stipulates how decrees can be amended by Parliament. But at the same time no such amendments shall have retrospective effect, nullify any decision made under the decrees and promulgations, or grant any compensation, damages, relief, remedy or reparation to any person affected by these laws.
The political deception that has been created that Fiji has a genuine democracy under the 2013 Constitution is the biggest lie. Many of Fiji’s international partners, including the United Nations Human Rights Council (UNHRC), have called for a review of the 2013 Constitution because they know it is not a constitution, which promotes genuine democracy.
The separation of powers, the derogations in the Bill of Rights, the ouster clauses, and the existence of the draconian decrees all render the Constitution undemocratic and unsustainable in the future.
For example, the Public Order Amendment Decree (POAD) remains in place. Under this decree an accused person could be held in custody for 16 days without being charged. The 2015 US State Department report on human rights in Fiji report specifically highlights the POAD.
Other undemocratic provisions
Section 131 (2) of the Constitution states the following: “It shall be the overall responsibility of the Republic of Fiji Military Forces to ensure at all times the security, defence and wellbeing of Fiji and all Fijians”
The military therefore can define the “wellbeing” of the people and can use this quite easily to interfere in the way in which a government runs. In other words, it can legally make political decisions.
Some constitutional experts and observers have identified Burma’s 2008 Constitution as unique in its difficulty to change. Peter Popham in his book “The Lady and the Generals” (2016:67) observes, “No constitution in the world other than Myanmar’s has an amendment procedure which requires approval by more than 75 per cent of members”.
In fact Myanmar’s constitution requires 75 per cent of parliamentarians to amend it. We could easily add Fiji as another country in the world other than Myanmar whose constitution has an amendment procedure which makes it almost impossible to make any amendment.
Section 160 of the Fiji Constitution requires 75 per cent of the Parliament to approve an amendment — and then 75 per cent of registered voters!
Therefore the notion that the Constitution is supreme is meaningless. We have a parliamentary democracy established under a Constitution that basically plays the role of bridesmaid to decrees and promulgations.
Additionally, there are serious issues regarding the separation of powers between the executive, legislature and the judiciary and other independent State institutions.
For example the Constitutional Offices Commission is chaired by the Prime Minister, and has the Attorney-General plus two members appointed by the Prime Minister, Leader of the Opposition and her nominee. Effectively this is a government committee with a token representation from the Opposition. It is hard to imagine how this commission can be politically neutral and independent.
No fundamental rights
Among the decrees and promulgations that erode fundamental rights and freedoms are the Political Parties (Registration, Conduct, Funding & Disclosures) Decree of 2013, the Electoral Decree of 2014 and the Media Industry Development Authority Decree of 2010.
The Essential National Industries (Employment) Decree of 2011 was twice amended in Parliament because of the threat of a commission of inquiry by the ILO. While the amending Acts give some freedom to workers for the right to organise and form trade unions, basically all industries in the country have been declared essential, thereby prohibiting strikes, pickets and protests by trade unionists.
The airline industry, banking and finance sector, communications sector, local government or municipal councils, to name a few, are severely affected by this restriction.
Similarly, the Political Parties Decree and the Electoral Decree prohibit trade unionists and employees of unions from contesting elections. They have to resign their positions in order to do so. They are ridiculously classified as public officers.
The continuation of the Media Industry Development Decree will render meaningless all talk of Fiji once again being a genuinely democratic nation.
In a real democracy people have the liberty to speak openly and candidly. The government of the day listens and the media exercises its role as the messenger and watchdog of democracy, and as an independent institution, responsibly asserts the right to speak, criticise and agree, without fear or favour, and not merely echoing the voice of Parliament or the executive government.
Only a cosmetic change to the decree was made in July last year when fines against individual journalists were reduced. But editors/publishers and media owners face stiff penalties and for supposed breaches. The owner of a media organisation faces a fine of up to $100,000 while editors and publishers can be fined up to $25,000.
The media must be allowed to freely scrutinise the consequences of actions and decisions of all of us as their representatives in the highest court of the land and Government on ordinary people, while consciously representing the interests of the disadvantaged and downtrodden in society and not just the powerful and wealthy or its owners and advertisers.
It is essential in this regard that Government treats all the media on a level playing field. We know that one newspaper, which is little more than a propaganda arm of this Government, receives about $5 million of government advertisements denied to the competing newspaper.
Proof of it is that this newspaper has barely carried any stories on the revelations of the Auditor-General reports tabled in Parliament after the elections. News releases by opposition political parties are hardly printed and when they are, the story is either a small item or given a different meaning.
For three years until last year one television station was given six monthly licences while the State-owned television station had the luxury of not only financial support but also a long-term licence.
Therefore, freedom to scrutinise and make known to all, if available to Fiji’s entire media, will ensure accountability, transparency and good governance. This is sadly lacking with a few exceptions, mainly the oldest newspaper in the country.
Genuine democracy and parliamentary democracy can be achieved to some measure if the recommendations of the annual Report of the Electoral Commission for 2014 and, especially the Report of the Multi-national Observer Group (MOG), which monitored the September 2014 elections, are implemented. It is vitally important that recommendations of the reports be incorporated in any strategic planning undertaken by the Fijian Elections Office as part of preparations for the next general elections scheduled for 2018.
This can only happen if Government brings before Parliament, the Media Decree, Political Parties (Registration, Conduct, Funding & Disclosures) Decree and the Electoral Decree, to make the necessary changes as recommended by the MOG, to make the next elections credible.
The recommendations contained in the 53-page MOG report are credible and highlights the difficulties and frustrations faced by the political parties, candidates, the media and non-governmental organisations (NGOs) during the last elections.
On the media, MOG rightly noted that harsh penalties in the Media Decree prevented most media outlets from effectively reporting on election issues.
The MOG rightly recommended the need for regulation as well as an independent institution to prevent and adjudicate on media bias thus ensuring a level-playing field among election participants, as well as a review of penalties in the Media Decree.
The fact that MOG has recommended for an independent institution proves MIDA’s lack of neutrality because it is a body appointed by Government. A free, fair, credible and unfettered media industry in Fiji is rendered meaningless if MIDA continues to exist.
The MOG report also highlights the need for amendment to the Political Parties (Registration, Conduct, Funding & Disclosures) Decree. It rightly points out that the broad definition of a “public office” holder excludes a large number of citizens from freely participating in the political process. Furthermore the report describes the prohibition on trade union officials from being members of political parties, as a limitation on political freedom.
The MOG has recommended for requirements to be reduced for political party registration as well as allow public office holders and trade union officials to be political party members.
This has been the case throughout our independent history.
The MOG has recommended changes to the Electoral Decree. Most importantly, the MOG notes that the absence of political party identification from the ballot paper and National Candidates List was unusual — the lack of any names, symbols and photographs on the ballot paper.
The MOG also observed that voters were prohibited from bringing “how-to-vote” pamphlets into polling stations and anyone caught breaching this provision faced a hefty fine of $50,000 or imprisonment of a term up to 10 years, or both.
Furthermore, NGOs were denied the right to be election observers. The MOG has recommended the following changes to change to ensure credibility of the election process:
* Symbols and names of candidates to be included on the ballot paper and the National Candidates List;
* Penalties for election related offences to be reviewed in accordance with international standards and practice; and
* Government should review and finalise all existing electoral laws and regulations well in advance of the next election.
If Government truly believes in “common and equal citizenry” and the protection of fundamental rights and freedoms, it should have no hesitation in accepting the recommendations of the MOG, which observed the elections in strict compliance with Government’s terms of reference.
Government has so far not commented on the recommendations of the report. Nor has the parliamentary standing committee on Justice, Law and Human Rights scrutinised the reports one year after it was referred to it.
The recommendations have to be implemented to ensure the next general elections are credible, without any perceived or real fear of suppression of fundamental rights and freedoms.
The road ahead
Twenty months after the general elections, the FijiFirst Government thinks it is still in election and campaign mode. It is indulging in fear mongering and “my way or the highway” style of rhetoric in an attempt to promote dislike of the Opposition among the people of Fiji.
All these are nothing but an attempt to disguise the fundamental concerns affecting the country like continuing suppression of freedom of speech and freedom of association.
Our restoration of democracy has basically been a transformation from military dictatorship to parliamentary dictatorship.
We cannot continue like this any longer. The notion that a single individual, one party or one organisation knows all the answers has not worked anywhere in the democratic world. Similarly, “I know it all” will have to end in Fiji.
A good example of this has been Government's approach on a new flag for Fiji. While this has been put on the back burner because of Severe Tropical Cyclone Winston, Government is adamant that Fiji will have a new flag. It has rejected calls for a referendum — something that New Zealand adopted recently because a flag is the most important national symbol. But
in Fiji, Government thinks views received through text messages and the social media are good enough!
The PM has to honour his pledge of working together with the Opposition made during his maiden address in Parliament October in October 2014 if he genuinely believes in common and equal citizenry and building lasting social, economic and political stability.
He must accept that the draconian and regressive decrees and
promulgations that erode Chapter 2 or the Bill of Rights in the Constitution should be amended or better still repealed.
The Prime Minister must accept the fact that the so-called salient
provisions of the Constitution that he espouses as the way forward for Fiji are subservient to these decrees and promulgations.
Therefore, this necessitates a bi-partisan approach in Parliament to amend and repeal these and at the same time establish a commission to review the contentious provisions of the Constitution as highlighted by the working group of the UNHRC in late 2014.
There is no other alternative apart from this noble and sensible approach to curing the social, economic and political ills of our nation.
Severe TC Winston has been a huge setback for our people in the affected areas and for the country as a whole. However, the support that we have received and continue to receive from our international partners — co-ordinated support from both Australia and New Zealand brings home the fact that these two neighbours are so vitally important for Fiji both economically and politically.
It is perhaps time for the Bainimarama Government to rewrite its script where its strategic, economic ties are concerned with Australia and New Zealand. This means that we should work hard to forge a closer, much more deeper and meaningful integration with Australia and New Zealand.
This we can do if we move towards a meaningful political reform in Fiji so that we can achieve genuine democracy in Fiji and move away from the dictatorial decrees and indeed the dictatorial 2013 Constitution.
The first step towards these reforms is for the FijiFirst Government to set up a joint parliamentary committee to repeal and amend all draconian decrees preserved in the Constitution and further set up a constitutional commission to further change the Constitution.
For their part Australia and New Zealand must continue to also push for those political reforms as the 2013 Constitution and the so-called democracy in Fiji is not sustainable.
Prime Minister John Key’s proposed visit to Fiji would definitely be
welcomed by the people of Fiji as our people to people relationship is warm and cordial. Many would see this visit as further strengthening our ties but many would also expect some good messages to the government to improve our democracy and its institutions.
We have about two years to undertake some of the key political reforms so the 2018 general election is a genuinely free and fair election through which we can set the foundation for further reforms to bring about genuine democracy in Fiji.
* Professor Biman Prasad is the leader of the National Federation Party. This opinion is based on excerpts of his speech on May 26 at Centre for Strategic Studies, Victoria University, Wellington, NZ. The views are his own and not of The Fiji Times