Saturday, March 28, 2009

The need for speedy resolution

The need for speedy resolution
By Jioji Kotobalavu - Saturday, March 28, 2009

The writer believes the military can be proud and satisfied that their contribution through the electoral reforms, good governance initiatives like FICAC, and the charter as a whole, will be their lasting legacy.
The meeting of political parties convened by the interim Prime Minister on March 9, 2009, seemed to have been a very good start in the preparations for the President's National Dialogue Forum.
They agreed on the Forum's agenda. The Forum is to review Fiji's political experience and parliamentary reforms and, then, discuss the interim Government's proposed electoral reforms and Charter for building a better Fiji. They also agreed to expand the membership of the Forum to include civil society organisations. And they received the recommendations from the United Nations and the Commonwealth on international leaders they would be willing to sponsor to assist with the Forum.
Within a week, however, there were discordant voices from some of the parties. Two criticised the dominance of the bigger parties. Another suggested that the next general elections should be deferred to 2011. Most disturbing of all, disparaging local comment has led to the withdrawal of the distinguished PNG leader who had reportedly agreed to serve as the Forum's moderator.
Whilst these parties have every right to freely articulate their concerns, we should be concerned because the Forum can easily be derailed by those who are interested mainly in pursuing their individual partisan self-interests.
They are fully aware of the dire consequences of prolonging the present state of political uncertainty. Our economy is continuing to decline. We cannot survive on our own. We need all possible assistance, including the aid package of circa $350million which the European Union is reportedly holding for our sugar industry. We have to restore normal relations with all countries.
The people themselves are yearning for a quick return to a democratic order where they would feel more secure and be more confident of their freedom and the fair and just application of the rule of law.
But these parties also know that the interim Government's proposed new system of national elections will give them considerably better prospects of winning seats in the House of Representatives. With the use of the proportional representational method, any candidate that receives a minimum of about 7000 votes would successfully win election. So, naturally, those smaller parties which failed to secure seats in the 2001 and 2006 elections would see it as being in their political interest to bide for more time and to delay the next elections in order to increase their voter support.
It is crucially important, therefore, to ensure that the national dialogue to resolve Fiji's political future and to facilitate its economic recovery is undertaken with urgency and with a clear focus and common purpose. What will be helpful in this is to identify specific issues for the Forum to consider following its plenary discussions on its broad agenda.
Specific issues
For the President's Forum to be successful, I believe it has to come to a clear understanding on the following issues.
The Qarase and Others versus Bainimarama and Others constitutional challenge appeal case.
The High Court had ruled on October 9, 2008, that in the exceptional circumstances, not provided for by the Constitution, and in the interest of peace, order and good government, the President lawfully exercised prerogative powers under the common law to assume direct presidential rule "until suitable elections could be conducted." With these ultimate reserve powers, the President ratified the dismissal of PM Qarase and his Cabinet and the dissolution of Parliament by the Commander of the RFMF, and appointed Commodore Bainimarama as PM together with a Cabinet of ministers to advise him. This judgement is being appealed before the Court of Appeal.
Allowing this appeal process to its final conclusion would clearly be in the public interest of clarifying the legal question pertaining to the continuing possession by our Head of State of inherent reserve or prerogative powers additional to his expressly prescribed powers under the 1997 Constitution. It would, however, be very helpful to the President's Forum if the two principal parties in this constitutional challenge appeal case, ousted PM Qarase and interim PM Bainimarama, were to decide now whether to await the final judgement in the full appeal process, or whether they are prepared to agree as part of a comprehensive political agreement that notwithstanding the appeal outcome, the holding of national elections without further delay, using the interim Government's proposed new system of elections, is the best pragmatic way to return Fiji to democratic and constitutional rule.
Obviously, what is required is for the President to bring them together. If they are agreed on the early election option, the Forum can then assist by working out the finer details of the new election system, e.g., the configuration of the constituencies and whether an open list or closed list voting is to be adopted.
General elections
The Forum needs to unanimously agree that it is in Fiji's direct interest to hold elections as soon as possible. Taking into account the stipulations of our electoral laws, once a decision is taken to proceed with elections, a minimum preparatory period of at least 10 months is required.
Elections are necessary and urgent for two reasons. In a parliamentary democracy, the authority to govern can only legitimately come from the people through free elections. They are the ultimate source of the sovereignty of the State. Direct rule by command order from above can be legitimised on the ground of imperative necessity only in extreme national emergency situations and only as a temporary expedient to ensure peace, order and stability. The present regime of direct rule by the President cannot be for an indefinite or indeterminate period.
We have to return to a democratically elected government under Fiji's Constitution. The second reason is self-evident from the outstanding examples of economically successful countries. People feel confident about their future when they are free from oppression and enjoy liberty and the assurance of equal rights and the equal protection of the law. It is in this kind of democratic environment that people's entrepreneurial spirit and creative instincts flourish.
The direct result is economic growth and dynamism. This is what is lacking in Fiji today and why our economy is stagnant. We need to restore democracy to regain the confidence of citizens, investors and overseas development donors and trading partners alike.
As to the new system of elections, I strongly commend the interim Government's proposals for the abolition of racially based communal seats, and the adoption of a common roll, the equal weighting and value of every vote, and the proportional method of determining vote outcomes. The combined result of all these is an electoral system that is relatively easy for the people to understand, simple for the electoral officials to administer, and one that is in full compliance with the standards in our Bill of Rights and the Universal Declaration on Human Rights.
But the most persuasive reason for recommending this new system is that when compared to the electoral systems in the 1970, 1990 and 1997 Constitutions, it provides the best framework to realise the national goals that are set out under Section 6 of the 1997 Constitution. These are the equitable sharing of political power among all communities, the formation of widely representative governments through voluntary coalitions of willing political parties, and governments that take full account of the interests of all communities.
The new system is fair and inclusive. It provides a positive instrument for the equitable representation of individuals, communities and women, and for promoting inter-ethnic accommodation and co-operation to an extent never achieved before. The reserved communal seats, which have been a common feature of all our three constitutions since Independence, have only served to fuel race-based politics.
What is needed of the Forum is to make decisions on the finer details of the new system such as, for example, whether there are to be three, four or five regional constituencies, or a single national constituency as is the practice in Israel, and whether voters are to choose their preferred candidate directly, or whether they are simply to place their vote on their preferred political party .
Multi-party Cabinet
In addition to the new system of elections, the interim Government is also recommending in its Charter the discontinuance of the mandatory requirement for a multi-party cabinet under section 99 of the Constitution. I commend this to the Forum.
We know from experience with the SDL/FLP multi-party Cabinet in 2006 that this kind of enforced marriage between two parties with diametrically opposed policies is not workable in the long run. A typical voluntary coalition government is successfully self-sustaining because the partners need each other to maintain their combined majority in parliament.
They co-operate out of mutual necessity. The multi-party cabinet is not a coalition. The PM and his party already have the necessary majority to maintain their government in the House of Representatives. They do not need the support of the entitled party in the multi-party cabinet in voting in Parliament for their political survival.
There is another very cogent reason for dispensing with the multi-party cabinet requirement. Since Independence, we have consistently adopted the British model of parliamentary government. The party or coalition of parties that wins a general election forms the government.
The second largest party forms the opposition in parliament if it chooses not to join the government. The role of the parliamentary opposition is to keep the government fully accountable and in that process it presents itself to the electorate as the alternative government. The multi-party cabinet requirement has severely undermined and weakened this accountability structure which is critically important in protecting the State from the dangers of the tyranny of the democratic majority. The result is a very weak and ineffective parliamentary opposition. Further, it has caused much confusion in the nomination of opposition senators. As clarified in a High Court ruling, the leader of the entitled party in the multi-party cabinet is empowered to select the majority of opposition senators, and not the constitutionally appointed parliamentary leader of the opposition. So, we now have the ridiculous situation where the entitled party in the multi-party cabinet is concurrently part of the government and the opposition in the senate. How can a party be in government and be part of the opposition at the same time? The interim Government is, therefore, fully justified in its Charter recommendation for the revocation of the multi-party cabinet provisions.
Enabling promulgation
The Forum will have to discuss how the proposed new electoral system and the discontinuance of the mandatory multi-party cabinet requirement are to be brought into effect for the next Elections. This is a difficult issue. The Constitution is still extant and as the High Court highlighted in its October 9, 2008 judgement, the President's assumption and exercise of prerogative power has not consolidated any revolution. But, then, we are now under direct presidential rule and through it the President has legitimised the dismissal of the constitutionally-elected Qarase Government and the 2006 Parliament.
There are those who insist that any amendment to the Constitution has to be undertaken strictly in accordance with the relevant provisions of the Constitution. They are right. But, then, in the present circumstances, this would virtually be a political and practical impossibility. Can a President who is governing under reserve powers re-convene Parliament by invoking the emergency provisions of the Constitution? Even if this were possible, could Parliament be summoned only for a day or two, to effect the constitutional changes, when during that specified period the ousted PM Qarase and his dismissed Cabinet would have to be re-instated whilst PM Bainimarama and his interim Administration would carry on with their assigned role under the prerogative power regime?
The High Court carefully explained in its Qarase versus Bainimarama case ruling the President's authority to promulgate legislation prior to the return of Parliament. This prerogative authority is to be exercised on the clear understanding that it is for the incoming Parliament to scrutinise all promulgations and to decide on their continuance. The question that, therefore, arises is whether it is possible on the basis of this judicial advice to effect the needed changes by promulgation? This assumes that the electoral and multi-party cabinet provisions of the Constitution would remain but they would be temporarily set aside for the next elections. Following the elections, the new Government and Parliament will then commission an independent review of the whole Constitution.
This comprehensive review would clearly be better than a piecemeal approach. Its main objective is to ensure the full and complete harmonisation of the Constitution with the Charter. The additional advantage is that it will involve country-wide consultations with the people.
Caretaker administration
This is obviously a politically sensitive subject but it needs to be considered by the Forum in the interest of ensuring free and fair elections and speedy and unhindered preparations.
The proposal is that once there is agreement on the holding of elections, the President and the PM are to consider the appointment of an all-civilian, non-political and non-military caretaker administration to organise national elections within 10 months.
This will require a big decision by the interim PM and the military. But it will be for the overall good of Fiji and the military can be proud and be satisfied that their contribution through the electoral reforms, good governance initiatives like FICAC, and the Charter as a whole, will be their lasting legacy.
* This article is published on the understanding that these are exclusively the views and opinions of the author and this newspaper is not in any way responsible.

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