Thursday, August 21, 2008

Legitimising the charter

Legitimising the charter
Maika Bolatiki
8/20/2008


Now that the draft People’s Charter had been endorsed by the National Council for Building a Better Fiji (NCBBF), the real hard yard to be covered is legitimising it.

We have heard the chairperson of the Fiji Human Rights Commission (FHRC), Dr Shaista Shameem saying that the draft People’s Charter has stayed within the confines of

the 1997 Fiji Constitution.

She said in an earlier interview that while they were not involved in any of the stages of the NCBBF work, they noted with approval that the draft Charter had stayed within the

confines of the 1997 Constitution which her office was bound to uphold

and protect as long as its provisions fell within international human

rights law.

“Not all the provisions of the 1997 constitution, for example the electoral provisions, comply with international human rights law.” Dr Shameem. As a sociologist and lawyer, the draft Charter she said sounded good. She said many people criticized the 1997 constitution but it contained what the people of Fiji thought were appropriate in the 1990s.

“In our view the 1997 Constitution needs only a few gentle tweaks, from the perspective of principles in the draft People’s Charter, to make it fully compliant with the Universal Declaration of Human Rights and the UN Charter.”

Dr Shameem said the UDHR was the benchmark for all constitutions. “Fiji’s 1997 Constitution is as close to UDHR as anyone could get, given our unique social and structural make-up, but the time has come to make it even more consistent with the UDHR.”

She said the Charter should be given a chance.

Rev Akuila Yabaki said - “The 1997 Constitution does not prohibit the convening of a forum such as the Charter process. Therefore the Charter process does not violate the constitution.”

He also said the draft charter had not made any recommendations for reforms to be implemented outside the constitution and it is wrong and misleading to say that the charter is violating the 1997 Constitution.

It is a fact that legal birds will have different interpretations on the matter.

Local academic now based at the Australian National University and also a drafter of the 1997 Constitution, Dr Brij Lal said the People’s Charter, as a research and consultancy document, did not violate anything. The constitution he says guarantees the freedom of speech.

“The problem lies when the architects of the charter pronounce the constitution ‘imperfect’ and see the recommendations of the Charter as ‘strengthening the constitution.’ Therein lies the problem. Any changes to the constitution should be made in accordance with the provisions of the constitution. And parliament is the only body which can make amendments to the constitution. That is why it is necessary for the recommendations to be considered by a re-called parliament. Anything outside of it will be unconstitutional,” Dr Lal said.

On claims that the electoral provisions of the constitution violate the constitution he said -

“It is not correct to say that the electoral provisions of the constitution violate fundamental principles of human rights. What those who say this do not acknowledge is that international law provides a ‘margin of appreciation’ for individual nations to incorporate into their electoral and constitutional provisions certain aspects of their culture and history which are unique, provided they are done in a constitutional way. The parliament of Fiji approved the electoral provisions.”

He adds - “Even if we agree that certain provisions of the Electoral Act need changing, there are clear procedures laid down for this purpose. It is the unwillingness of the drafters of the People’s Charter to follow the due process, to abide by the provisions of the constitution that creates the problem”

Fiji Labour Party president and a member of the NCBBF Jokapeci Koroi said after the FLP national council meeting in Nadi (August 16) said much of what was proposed in the draft People’s Charter would need constitutional and legislative amendments.

We must be mindful of the fact that a basic principle of constitutional law is that the manner and form procedures set down for the alteration of a constitution must be complied if the amendments are to be effective.

The 1997 Fiji Constitution sets out the mechanism for this.

And we know for the fact that any amendments to our constitution can only be done in parliament.

Now as we know there is a twist in getting the views of the people about the Charter.

People will give their views on the charter by ticking a yes or no on a form that has been prepared.

Reacting to this Dr Lal said - “The whole proposal by the NCBBF to get the people’s approval for the Charter by asking them to indicate whether they support it or not seems very dubious to me. There will be no secret ballot; who knows who will give assent; the

presence of the police will be intimidating; the excuse that a referendum will be too expensive is just that: a very poor excuse; the whole process will be undemocratic and un-transparent, a breach of the very principles of good governance the charter people are preaching; it makes a mockery of the whole consultation (dictation) process. I hope people are raising these questions before it is too late.”

Former Supervisor of Elections Semesa Karavaki said this system should not be imposed on the people because the purpose of consultation was for people to freely participate in the process.

He said this system was open to abuse and could be falsified. “There’s nothing on it. The views of the people can be manipulated,” said Mr Karavaki.

Those facilitating the consultation he said should just go for a referendum because this was the only accountable and transparent way to go.

The system of using feedback forms was open to misrepresentation and was a waste of time and resources.

On the same note Mr Karavaki said those who opposed the Charter could be victimised as there had been threats of no charter, no election.

Then we have the President’s Dialogue Forum.

At a press conference on 18th August, interim Prime Minister Commodore Voreqe Bainimarama said - “At the President’s Dialogue Forum we should agree to change the electoral system, legally and constitutionally and in a broadly acceptable way that is supported by the majority of the people of Fiji. Once we agree on the change and how it is to be done, then we can also agree on the date of the elections and how soon we can have it.”

Will the decision of the Forum .legalise the new electoral forum package?

Will the Forum decide on how the new electoral reforms be implemented?

It is a fact that this Forum cannot legalise the proposed electoral system in the draft People’s Charter.

According to Dr Lal reconvening the deposed parliament is the best option.

“Recalling parliament is the best option constitutionally. Engage the SDL and other stakeholders on the issue of electoral reform, seek consensus (and there is room for believing that there is that possibility) through the agency of the Commonwealth -UN Forum, then recall the deposed parliament to make appropriate amendments to the relevant sections of the constitution for elections to be held,” Dr Lal said.

SDL also favours this and according to its national director Peceli Kinivuwai, the party had made a proposal for parliament to be recalled and sit for only two weeks. In these two weeks, parliament can pass all the proposals about the new electoral reform. As soon as it is done, parliament will then be dissolved.

It is a fact that the military backed interim government does not have the mandate to carry out what is outlined in the Charter.

It is a fact that PM Bainimarama has reached a point of no return and wants the Charter put in place.

Realistically, there are two options to legitimize the new electoral system. The first is the constitutional way and the other is the unconstitutional way.

Ousted PM Laisenia Qarase wants the constitutional way because it would be good for the country and its people and will also strengthen bilateral ties. We know the unconstitutional way will only bring hardship.

The way forward for Fiji now is to recall parliament and name a caretaker government as suggested by ousted Opposition leader Mick Beddoes to lead the country to parliamentary democracy.

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