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Constitutional traps awaiting after elections: deal with them now


[The Fiji Times, 31 Aug 2001]


This week, a frustrated nation votes yet again- spending long hours, in interminable lines, under hot sun and in miserable rain.  Taxpayers, parties, candidates and supporters spending millions of dollars.


Investors and the nation hope for a stable parliament and government, so that the economy can move again.


But two constitutional traps await the nation- one in the selection of the Prime Minister (and his Government), and one in the selection of members of Senate.


Because of unclear, inadequate and inconsistent wording of the Constitution.


Can these be sorted out, before the election results start coming out?  Before the political squabbles, legal battles and more instability?


Selection of Prime Minister and Government


The Constitution (Section 98) states that the President “acting in his or her own judgement appoints the Prime Minister” who “in his opinion” has the support of the House.


Section 96(2) says that the Constitution “prescribes the circumstances in which the President may act in his or her own judgement”.


Section 97 states that “Governments must have the confidence of the House of Representatives”.


This means that the Prime Minister selected, and his Government, must have the majority of the votes in the House- at least 36 out of the 71 MPs.


Well may you ask, how can there be any disagreement about this?  Probably not, if any one Party were to obtain 36 or more seats.


But what if no one Party gets outright majority, as may be the case in this election?


What if different coalitions of parties could theoretically form the majority in the House?


Nothing in the Constitution says that the President should consult the political parties and find out who they support for Prime Minister.


What if the smaller political leaders give confusing public and private signals to the President, torn between Ministerial lollies offered by potential Prime Ministers and voter pressure?


What if wrong advice is given to the President by unknown “advisers”, whose recent track record would suggest a dismaying willingness to go off the Constitutional track?


What if the President,  on the basis of signals and advice given to him,  uses his “personal opinion and judgement” and selects a Prime Minister (and Government) which is found later, not to have the majority support in the House?


There will be a vote of “no-confidence” in the House and the Government is defeated.


What then?  Unfortunately, the Constitution is not clear on the next steps.


Section 107 states that if a Government loses a vote of no-confidence “AND the Prime Minister considers that there is another person capable of forming a government that has the support of the majority of the House”, then he “must immediately advise the President” of the name of that alternative Prime Minister.


Well, well.  What if the first Prime Minister claims that he does not consider that there is an alternative Prime Minister (remember statements made recently by some political leaders)?   And so he gives no advice to the President about the alternative Prime Minister.


What does the Constitution require the President to do next?


Section 108 states that if a Prime Minister loses a vote of no-confidence  “AND advises a dissolution of the House of Representative”, then the President may go about selecting an alternative Prime Minister.


But what if the first Prime Minister does not advise a dissolution of the House either?


Nothing in the Constitution explicitly states that the President must dismiss a Prime Minister if he loses a vote of no-confidence.


What the Constitution does say (Section 109) is that “the President may not dismiss a Prime Minister unless the Government fails to get or loses the confidence of the House of Representatives”.   But even that was not observed last year, was it?


Do we have stalemate, with the Minority Government continuing?  With Machiavellian powerbrokers making use of constitutional uncertainties?  And yet another costly election?


So what could help in this situation?


Clearly, the first Prime Minister selected by the President must have the support of the majority in the House.  How can the President be assisted in this?


One solution is this.  Immediately after the election results are known, political leaders and parties must promptly write to the President, supported by signatures of all their elected MPs, their preference for Prime Minister and political party to lead Government.

And these written statements must be concurrently released to the media.


So that there are no confusing signals sent to the President.  And it will also ensure that any Machiavellian back-tracking by political parties and leaders behind the scenes will become fully transparent to the voting public.


Selection of Senate


Section 64 of the Constitution sets out how the 32 Senators are to be appointed.


There are no problems about the 14 to be nominated by the Bose Levu Vakaturaga (Section 64(1)a) or the 1 to be nominated by the Council of Rotuma (Section 64(1)d).


But there are serious problems about the 9 to be nominated by the Prime Minister and the 8 to be nominated by the Leader of the Opposition (Section 64 (1) b and c)


The Constitution says nothing about how the Prime Minister is to be guided in making his 9 nominations.


But common sense would suggest that the Prime Ministers’ nominees would represent all the parties who have agreed to be part of the Government (whether eligible to be in Cabinet or not, under section 99 of the Constitution).


But Section 64(2) of the Constitution makes the extra-ordinary and obviously inconsistent statement that the 8 nominations by the Leader of the Opposition, must come from “the leaders of each of the political parties entitled to be invited to participate in the Cabinet”.


In other words, parties eligible to be in Cabinet (if they do join Government) will nominate both the Prime Minister’s nominees to Senate, and the nominees of the Leader of the Opposition- 17 altogether. More even than the BLV nominees to Senate.


Surely this was not the intention of the Constitution framers, if Senate was to provide some checks and balances to the House of Representatives.


Section 64(2) probably should have read that the nominees of the Leader of the Opposition should come from “the leaders of each of the political parties not entitled to be invited to participate in the Cabinet”.


But,  even this is inadequate, given the current realities ofFiji’s strange political alliances.


In the 1999 Peoples’ Coalition Government, there were parties in Government, who were not entitled to be in Cabinet (VLV and PANU).  And there were parties in Opposition who were entitled to be in Cabinet (SVT).


The same may happen again, following the 2001 elections.


One sensible rule could be that the Prime Minister’s 9 nominees will come from all the parties that agree to form government, in proportion.


And the 8 nominees from the Leader of the Opposition will come from the political parties and independents who sit in Opposition, in proportion.


Should the political leaders and parties agree on this before the election results come out? Before the political squabbles.  Before the legal challenges.  Before more political instability frightens off investors yet again..


Judicial Review Before Political Crisis


I have written about both these constitutional uncertainties previously (see my Fiji Times articles of 17 June 1999 (“Clause 2 stalls Senate decision”) and 9 July 1999 (“Moving to the same beat”). Some of the events warned about have unfortunately come to pass.


As the recent CloseUp programme indicated, our political leaders show little inclination to co-operate with each other with good will and integrity, despite the multi-party government requirement of the 1997 Constitution.


Our lawyers have not shown any urgency in addressing these fundamental weaknesses in our constitution (legal challenges do generate substantial legal fees).

What about a judicial review of some of these constitutional uncertainties before the election results are determined and before political crises once more hits the nation?


Or will our judges be too busy, firing shots at each other, as currently?

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