 |
 |
 |
||
Working Group 1 BACKGROUND Constitution of Fiji The Constitution of Fiji makes provision for the peace, order and good governance of Fiji. Consistent with the doctrine of the separation of powers, the State consists of three main institutions of governance: a legislature responsible for making the law; an independent judiciary responsible for interpreting and upholding the law; and an executive (Government) responsible for development of policies for the government of Fiji and for administering the laws that are enacted. The Constitution enshrines democratic principles. It provides for the Westminster parliamentary system of government in Fiji. This vests formal executive authority in the President who is head of state, but who in practice acts on the advice of the Government (and in particular the Prime Minister and the Cabinet). The Parliament of Fiji comprises the House of Representatives, the Senate and the President. Members of the Government come from members of the House of Representatives or the Senate. The Constitution also provides that the judicial power of the state is vested in the High Court, Court of Appeal and the Supreme Court (the highest appellate court) and other courts established under law (such as the Magistrates Court and Small Claims Tribunal). The Bill of Rights provisions of the Constitution set out the basic rights of all individuals to equality and fair treatment by the law, including free speech and assembly and personal liberty. They also involve the right of all individuals to legal representation before the courts and sets out broad powers of the State to detain an individual. The Bill of Rights applies to all three arms of the State, namely to Parliament, the Judiciary and the executive Government. Fiji’s Electoral & Voting Systems Fiji’s electoral system has been influenced by its population makeup. Fiji’s population is dominated by two major racial groups, indigenous Fijians and the descendants of immigrant Indians. However, while Indian Fijians were once the largest ethnic group that has changed. Provisional results of the 2007 population and housing census show that Fiji’s population has increased by approximately 6.8 percent with Fijian population increasing by 20 percent and the Indian population declining 8 percent. There is also a huge movement of both major groups from rural to urban areas.Fiji’s Electoral & Voting Systems. Section 50 of the Constitution establishes Fiji’s single member electoral system. It states that “the House of Representatives consists of 71 members elected to represent single member constituencies.” Of the 71 members: (a) 25 are elected by voters registered on an open electoral roll; Fiji’s single member electoral system has been in place since independence providing for open and communal constituencies each returning a single member. The number of communal constituencies and composition of the House of Representatives has been altered twice the first in 1990 to guarantee indigenous Fijian control of the House and the second in 1998 to implement the composition set out above. In 1998, the first past the post voting system was also replaced with a preferential voting system or alternative vote, which requires a candidate to secure 50% plus one of the total votes cast to secure election to the House of Representatives. Under the Electoral Act there are two ways by which voters can assign their preferences. The first is by listing these preferences on the ballot paper. The second method is to allow the candidate they vote for to assign these preferences for them. This is known as the “alternative voting” system. Rule of Law & Administration of Justice An important constitutional principle of Government is the rule of the law, which simply put concerns the supremacy of law. One important aspect of this principle concerns the compliance of the three main institutions of governance (Parliament, Judiciary and Government) with the law in general. This means the authority of the State should be exercised properly in accordance with the law. Other elements of the principle concern the application of law to all citizens equally and to the establishment of a justice system in which the law is clear, properly understood and upheld fairly. As already explained, judicial power is exercised by the courts of Fiji. Besides an independent judiciary, the Constitution establishes an independent police force and prosecutions service, namely the Fiji Police Force and the Director of Public Prosecutions to initiate prosecutions under Fiji’s laws. Government bodies that are responsible for administration of justice include the:
Leadership There are many aspects to good leadership including a leader’s role in setting national directions for the country to follow. Some aspects relate to the personal attributes a person possesses that enables him or her to be a good leader while others relate to a leader’s private and public conduct. In terms of good governance and the type of legal or regulatory framework that can be put in place to ensure effective leadership the main focus is usually on the professional conduct of a leader and the imposition of standards to regulate this conduct. Subsection 156(2) of the Constitution sets out the ethical standards that are currently applicable to holders of high public office “who must so conduct themselves in relation to the performance of their public duties as not -to place themselves in positions in which they have, or could be seen as having, a conflict between their private interests and their public interests; -to compromise the fair exercise of their public duties;
-to use their offices for private gain;
-to allow their integrity to be called into question; or -to cause respect for or confidence in the integrity of the Government to be diminished.”
These standards are applicable to the President, Vice-President, Members of Parliament, holders of constitutional offices, Members of Commissions, Permanent Secretaries, the Secretary to Cabinet and persons who hold statutory appointment or governing or statutory positions within statutory authorities. Subsection 156(3) of the Constitution states that Parliament “must, as soon as is practicable after the commencement of this Constitution make a law:
Accountability Mechanisms Another basic principle of democratic governance is that the Government is accountable to the Parliament and ultimately, to the people for its actions. In other words, it can be called to account for, and to explain, its actions. There are several accountability mechanisms provided for under the Constitution and other laws to enable scrutiny of the day to day administration of the Government. Each Cabinet Minister is personally accountable and Cabinet is collectively accountable to the House of Representatives for the performance of their functions. All Governments must maintain the confidence of the House of Representatives and more specifically it must obtain the approval of Parliament to appropriate money and raise revenue for its ordinary services. The Constitution also establishes several independent bodies like the Auditor-General to be responsible for the audit of the accounts of Government and other public sector entities. Another is the Ombudsman who receives and investigates complaints of an administrative nature against the Government. There are other bodies like the Fiji Human Rights Commission which is responsible for ensuring the Bill of Rights provisions of the Constitution are adhered to in particular by the State (Parliament, Judiciary and Government) and all other public sector entities. While corruption and the imposition of ethical standards to maintain integrity are interrelated they can be distinguished. Basically, the breach of ethical standards under any Code of Conduct may or may not amount to corruption. This is because corruption involves the commission of a crime and certain breaches of ethical standards may not result in criminal charges or a conviction. The Fiji Law Reform Commission Report on Bribery and Corruption in Fiji describes corruption in general as “an act or conduct with which certain elements are concerned, namely; the obtaining of undue benefits or advantages for personal gain, and the abuse or misuse of one’s official authority.” The Report also refers to the Country Study Report 2001 of Fiji’s National Integrity Systems by Transparency International Fiji which highlights perceived or alleged types of corruption in both the public and private sectors as follows:
The weaknesses in political and public sector leadership, including improper use of office to pursue patronage do provide opportunities for corruption. As highlighted above, public perception is that more effective measures are needed to combat corruption. To-date the criminal justice system has been ineffective in dealing with issues of corruption when one notes the failure to prevent or limit the impact of the National Bank of Fiji financial crisis in the 1990s and the Agricultural Scam prior to the 2001 general elections. The Fiji Independent Commission Against Corruption (FICAC) has only recently been established although questions have been raised as to its legitimacy. Freedom of Speech and the Role of the Media Sections 30 of the Constitution provides for freedom of expression and sets out the limitations that Parliament may place on this basic human right. The provision states under subsection 30(1) that: “Every person has the right to freedom of speech and expression, including:
Limitations that may be imposed by Parliament on this freedom under law, are set out under subsection 30(2). Under this provision these limitations may be imposed in the interests of:
Sections 31 and 32 of the Constitution provide for freedom of assembly and association and set out the rights of all persons to this basic human right. They also allow Parliament under law to impose limitations on these freedoms and rights similar but not as exhaustive to those that may be imposed on freedom of speech and expression. These are the limitations relating to national security, public order, morality and health, and the protection of the rights and freedoms of other persons and their property. In addition to the limitations set out under sections 30 – 32 itself, the emergency powers of Parliament under the Constitution (s.187) allow it to make a law conferring on the President the power to declare a state of emergency and make regulations with regard to it. Any such law made by Parliament may allow for the derogation of the rights and freedoms provided under sections 30 – 32 of the Constitution and other rights provided for under the ISSUES Fiji’s Electoral & Voting Systems Provisions of the Constitution establish Fiji’s electoral and voting systems and set out the general framework for the conduct of general elections, the administration of which is provided for by the Electoral Act and subsidiary legislation made under it. Since the first general election conducted in 1999, various opinions have been expressed about the effectiveness of Fiji’s electoral system to deliver results that not only reflect the will of the people but ensure fair representation for all communities in Fiji. Fair representation was a major reason for the implementation of the current system. Communal seats to guarantee ethnic representation for Fijians, Indians and other communities have always been a part of the system. However, rather than fair representation, does the communal constituency system instead entrench race based politics, extremism and divisiveness in Fiji? Are these provisions discriminatory? And, if so, should the Constitution be amended to put in place an electoral system that does not discriminate on the grounds of race or ethnicity? As for the preferential or alternative vote system if communal rolls were to be removed should this voting system be retained? Or should Fiji change to a first past the post system? Do such voting systems also require a change to the single member electoral system. Another option that some have advocated is moving Fiji to a proportional voting system, under a multi-member constituency system. The complexity of the voting system, as evidenced by the number of invalid votes in three general elections, is another cause for concern that supports the argument for a review of the voting system. The actual conduct of elections is another serious issue, which may require consideration. International observers have highlighted numerous problems associated with the conduct of general elections in Fiji. Despite its size Fiji still requires one week to conduct its poll while other countries much larger in size and population are able to conduct theirs in one day. Problems have also been raised regarding the registration of voters and updating the electoral rolls, which among other things point to the lack of resources provided to the Elections Office in the four years between general elections. Currently, there are no laws in place to regulate campaign financing and the funding of political parties, which has become a prominent issue in recent years. Several incidents have occurred in recent years which highlight the need for an examination of this issue. These relate to establishment of private commercial companies to receive campaign contributions, funding from foreign sources and fund raising campaigns in general for political purposes. The Administration of Justice While relevant principles for upholding the rule of law are enshrined in the Constitution the administration of justice in Fiji faces several challenges. The Courts of Fiji have been hard pressed to cope with a heavy workload of case work, within limited resources. The various coups have also created their own challenges to the effective application of the rule of law. The application of the Bill of Rights to the criminal justice system in relation to how the Police carry out investigations and the provisions of the Penal Code and Criminal Code, which may also infringe on an individual’s rights and freedoms are issues that require examination. These issues and others relating to the administration of justice such as a review of the Magistracy are currently under review by the Fiji Law Reform Commission. It is possible that the recommendations that are made by National Task Teams to the NCBBF on a possible good governance framework for Fiji will accentuate the need to modernise and update the laws of Fiji, so as to provide a contemporary framework. Fiji lacks a body of laws which are clear, readily available and properly understood. The Laws of Fiji were last revised in 1985 and published in bound volumes. For various reasons no attempts were ever made to ensure these volumes were updated regularly and since then there have been numerous Acts enacted by Parliament. The task of updating Fiji’s laws is now a major undertaking, which requires resources currently not available to Government. Regional funding for the revision has been suspended due to the events of December 2006. While it is likely that this funding will resume following the next general election future measures for revision also need to be considered, which could include:
The following are other key constraints and challenges facing the law and justice sector:
Leadership Since the enactment of the Constitution in 1998 no law has been passed by Parliament in compliance with subsection 156(3) of the Constitution. There is some doubt over the extent of the application of these ethical standards for example does it apply to judges and justices of appeal or to the boards and chief executive officers of Government commercial companies? Is it possible to regulate conduct in the private sector or in civil society by imposing similar ethical standards on them or are legal reforms of corruption measures sufficient for this purpose? In relation to holders of high public office there is clearly a need to set out specific action and conduct that falls within the broad standards set out under subsection 156(2) of the Constitution. For examples what actions constitute a conflict between public and private interests? Enforcement and investigation mechanisms are also required. A major issue for examination is whether enforcement and investigation remain self-regulatory or whether responsibility for this should be assigned to an independent body like the Ombudsman as is the case in Papua New Guinea and Uganda. Currently, self regulation is possible without the need for legislation in certain areas for example each House of Parliament could under their Standing Orders adopt codes of conduct that implement investigation and enforcement measures for the standards set out under subsection 156(2) as is the case in jurisdictions like the United Kingdom. Is it still preferable to subject all holders of high public office to investigation by an independent authority when one considers that checks and balances are necessary in any system of Government? Self regulation by the media and the judiciary is also relevant in this regard. Implementation of the conduct rules may requires a consideration of some of the common measures used in other jurisdictions. For example the public disclosure by holders of high public office of their pecuniary interests is one measure used to ensure there is no conflict between private and public interests. Cabinet Ministers in the previous Government were required to disclose their pecuniary interests to the Prime Minister to allow the Prime Minister to determine whether a Minister’s actions created any such conflict. In certain jurisdictions such information is usually made public as a means of ensuring more appropriate conduct. A Bill for a Leadership Code of Conduct under subsection 156(3) already exists and was introduced in the House of Representatives by the People’s Coalition Government in 2000. This Bill has been subjected to further review by the Attorney-General’s Office of subsequent Governments. Institutions Supporting Accountability There are several issues relating to accountability mechanisms that need to be addressed to strengthen good governance and promote accountability. These require an examination of the adequacy of: (a) processes which fully inform Parliament on budgets, loans, and guarantees and the main activities of the Government and the Public Sector ; In particular the effectiveness of the Public Accounts Committee (PAC) of the House of Representatives has become a cause for concern. Under its internal rules (Standing Orders) the House of Representatives has established the PAC, which has a standing function to review the reports of the Auditor-General tabled in the House. The PAC for one reason or another has not tabled a substantive report on its review of the Auditor-General’s annual audit of Government accounts in the House of Representatives since 1998. This decade no Minister of Finance has ever had to provide a comprehensive response to the House of Representatives and the people of Fiji on measures being taken by the Government to address concerns raised in an Auditor-General’s report that has been verified by the PAC. The Fiji Law Reform Commission Report on Bribery and Corruption in Fiji made several recommendations, which included the establishment of an independent commission to investigate and prosecute corruption offences. It also made several other recommendations relating to the amendment of the Penal Code to create clearly defined criminal offences for corruption under a separate piece of legislation. The application of certain provisions of the Penal Code that deal with corruption in public sector to members of the private sector and civil society are issues that also require consideration. This is because corruption affects all sectors of society. Are further measures needed to strengthen the legitimacy, role and functions of FICAC? Are further legislative reforms needed to combat corruption in all sectors? The Relationship between the Media, Civil Society & Government A key political aspect of good governance concerns the role that the media and civil society in general (non-government and non-profit organisations) play in sustaining democracy and protecting human rights. For a society to function effectively, the responsibility of the media to make accurate and responsible reporting is equivalently important. To date discussions continue with regards to media freedom in Fiji. There has been on numerous occasions’ calls to re-look at the role of media in Fiji and the need for a western style, free media. Whilst there have been repeated assurances that government will not bring in laws that will curtail the media's freedom there are different views of what constitutes media freedom. In a healthy and truly democratic society, the relationship between politicians and a free press is, quite properly, likely to be wary, questioning and sceptical, rather than being closed. However, there is a need to improve the conditions for the media to function freely, effectively and assist in national development. The Thomson Report viewed the lack of professionalism in Fiji seriously. This they viewed as a major obstacle to a responsible implementation of the proper freedom of the media. They concluded that media errors and ill-judgments were much more often the result of inexperience than wilful distortion. In such a situation, an irresponsible media can be like a bull in a china-shop, capable of wreaking serious damage. Such instances are evident in the Tourism Sector. The establishment of civil society or non-government organisations in Fiji in the last decade has increased tremendously. Currently, many are registered as charitable trusts under the Charitable Trust Act and the legal framework for the establishment of such bodies and regulation of the conduct of their activities to promote accountability and transparency is another issue that has been raised. TASKS Examining whether or not the existing Constitutional framework provides for the most effective form of democratic governance for Fiji in that it enables the advancement of the economic and social interests of Fiji overall, particularly having regard to: -The effect of the existing electoral and voting system on conducting free and fair elections, including the use of communal voting rolls and the impact of the alternative voting system; -The multi party power sharing arrangements under which the Government is constituted; -The various protections that are provided for human rights and indigenous rights under the Constitution -The extent to which the Constitution encourages representative or, instead, divisive roles to be played by politicians and by political parties;
and whether any Constitutional changes should be recommended, including options for changes in the electoral system (such as by introducing proportional representation).
COMPOSITION The working group is to comprise up to 20 members: of whom at least four (4) are NCBBF members plus up to 16 others from government and non-government sectors. At least 10 of the 16 additional members are from the non government sector. The Working Group would have the power to co-opt additional members as it sees fit. TIMEFRAME
It is anticipated that the WG will be established and operational within a fortnight. In consultation with the Head of TASS, the Working Group may request the preparation of literature reviews and commission issues and Discussion Papers (IDPs) to assist in its deliberations. The WG shall report back to NTTs at the latest by mid March 08 with its report(s) and recommendation forwarded for the preparation of the State of Nation & Economy (SNE) report. REFERENCES Electoral Act 1998 Fatiaki, Vakatora & Patel, Building an Anti-Corruption Culture for Fiji, Bribery and Corruption Report, Fiji Law Reform Commission, Parliamentary Paper 85/2004, Government Printer 2004 Lala G.P. 2007, Review of 2006 Elections, Fiji Human Rights Commission Olaks Consulting Services, National Integrity Systems Country Study Report Fiji, TI Fiji 2001 Ramesh, Sanjay; 2007; Preferential voting and Indo-Fijian minority strategy; Journal of Peace Conflict and Development; UK Gary, Bill. 2007. Fiji: A New System Under Pressure. Fraenkel, Jon. 2006. An Audit of Fiji’s Electoral System. USP, Fiji. Norton, R. Reconciling ethnicity and nation: contending discourses in Fiji’s constitutional reformhttps://muse.jhu.edu/demo/contemporary_pacific/v012/12.1norton.html Burns Report Original Proposal of the 1997 Constitution |
||||
|
