Confrontational political parties passing the buck to the judiciary [The Fiji Times, 15 Feb 2002]
The sins of the politicians continue to be visited upon the judiciary.
Month after month, the judiciary is asked to clean up messes created by politicians.
Judges are forced to make decisions on constitutional issues where the constitution itself is extremely ambigious. And even if the constitution is clear, politicians callously disregard both the spirit and the letter of the law.
Judges are forced to pass judgement on crimes committed by pawns, while the benefiting master chess players behind the scenes, are never made to stand in the dock.
And the judges cop the flack from the innocent victims, the criminal pawns, and their families, often with blatant condemnation, which in any other civilised country would be seen as “contempt of court”.
Judges are in “lose-lose” situation
In many of these cases, judges are in a “lose lose” situation.
Justice Gates’ recent judgment is a case in point.
Is one tick below the line for a Party and candidate a valid vote or not?
The rules and regulations established under the 1997 Constitution are clear. There should be no ticks below the line. Only numbers indicating preferences, which must be expressed for more than 75% of the candidates listed.
One tick below the line is not a number. Even if the one tick was generously accepted as “First Preference”, that is still not enough. Because with three or more candidates, that would not be listing more than 75% of the candidates.
So a tick below the line, does not follow our electoral regulations.
But Justice Gates has ruled otherwise.
Gates not looking at the bigger picture
Is Justice Gates looking at the bigger picture? If the voter’s intention is quite clear- that vote should be counted. And one tick is quite a clear indication- whether above the line or below.
Judge Gates may well ask, why should one tick below the line (for a candidate) be declared invalid, while one tick above the line, for a party is declared valid?
Surely the voter’s wish should be supreme, not the party’s wish?
Except that the politicians who decided upon the electoral system and regulations, did not trust their voting supporters.
Politicians’ distrust of the voters
The politicians deliberately chose to have an “above the line” section for the parties, because they did not trust their supporters to give their preferences along party lines.
They feared (perhaps quite correctly) that if voters were given the freedom to decide, then Fijians would only give their preferences to other Fijians and Indo-Fijians would only give their preferences to other Indo-Fijians. There would be no ethnic co-operation, as the parties wanted.
At the 1999 Elections, the SVT and NFP (who had taken the lead in the creation of the 1997 Constitution) were giving each other their party preferences. While the FLP, FAP, PANU and VLV were giving each other their party preferences.
And all political parties asked their voters to vote “above the line” for the party, so that the votes would be transferred according to the party preferences (not necessarily according to the voter’s own preferences).
And that is the system that decision-makers on the 1997 Constitution agreed upon.
A system which encourages individual voters to give control of their votes to their parties.
And Justice Gate’s judgement effectively contradicts and reverses that.
Morally and ethically, Gate’s judgement may be understandable. Those voters who ticked below the line knew exactly who they wanted to vote for. Why should their vote be denied?
But the rules and regulations taken as a whole clearly make below the line votes invalid, as all parties understood before the elections, even if unfair to individual voters.
Unfortunately, when these very apparent weaknesses of the electoral system (and other parts of the Constitution) were raised with political leaders (both inside and outside Parliament), one response I recall was that the judiciary would decide if there were any doubts.
Judiciary now given the hot potato
Well, the judiciary is being asked to decide left, right and center. Because our Constitution has holes left right and center, and the refusal of our political leader to co-operate, creates political and constitutional crisis month after month.
There are terribly gray areas as to how Prime Ministers may be appointed or dismissed; how Senate Members are appointed or dismissed; how Members of Parliament may be dismissed by their parties, and thereby be forced to lose their parliamentary seats.
Unfortunately, despite awareness of these weaknesses in the Constitution, the enabling legislation was passed in a great hurry because the leading political parties then wanted to fulfil promises about the holding of the elections.
The major political parties then (SVT and NFP) wanted to end the decades of ethnic confrontation, and get on with the job of rebuilding the nation, with the two major races and their political parties in partnership.
Well, well, well.
All depended on political goodwill- which is now missing
The two largest political parties now are not interested in peacefully co-operating together, in fairness and justice to all parties.
The SDL is quite happy to exclude the major (and perhaps now the only) Indo-Fijian party who are entitled to be in Cabinet. Their spokesman (Jale Baba) asks the Conservative Alliance Party to respect the wishes of one George Speight who is being held on charges of treason, and who allegedly now supports the SDL.
The FLP apparently is now also co-operating with the Conservative Alliance Party, whose spokesmen daily continue to support the May 2000 coup-makers, who removed the FLP from Government. And strangely enough, some Conservative Alliance spokesman now also claim that they will be quite happy to work with the FLP in Cabinet!
What’s going on?
Is the FLP leadership hoping that the Gates ruling will set a precedence, and by shifting two or three more seats from the SDL to FLP, enable the FLP to form Government, with the support of the Conservative Alliance Party? In return for what?
And in response, what will the SDL offer the Conservative Alliance for their continued support?
Will all political parties continue to mount legal challenges to the Constitution, or electoral systems, only where it suits them?
Were SDL in the FLP position, would they not also have mounted a legal challenge as did the FLP? Were the FLP to have been in the NFP’s position, would they not now be bitterly condemning Gates’ judgement, as contradicting the regulations already agreed upon by political parties? The judges cannot win.
Major parties both ignore lack of proportionality
And note, that both the FLP and the SDL continue to ignore the most fundamental weakness of the current electoral system, its lack of proportionality, which denies both the SVT and the NFP their fair share of parliamentary seats.
Indeed, while NFP would have been entitled to six or seven seats in parliament, given the extent of their national support, even their one lone MP was challenged by FLP and may now be eliminated from Parliament.
Their attitude: Stuff the spirit of fairness and co-operation that led to the creation of the 1997 Constitution.
Parties ignoring real problems
Our people daily endure mounting unemployment, violence, crime, suicides, child molestation, all on a scale never seen before in the history of this country.
And our political leaders refuse to sit down peacefully and have constructive dialogue (unless there is a junket weekend in a tourist resort, with all expenses paid by theUSgovernment).
The daily politically destabilising speeches and press releases, and revelations of scams- are they all about one-upmanship and political leaders’ quest for power, regardless of where it leads our nation?
Come on. Isn’t there a better way forward?
Cannot the political parties set up a joint parliamentary committee to iron out the major weaknesses in our constitution?
Instead of creating crises and then passing the buck to the judiciary.