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The costs of compromise: a dead-end parliamentary farce (21 February 2016)

21/02/2016

The Costs of Compromise: a dead-end parliamentary farce (21 Feb 2016)
Professor Wadan Narsey

Purists have always argued that compromising with “illegitimacy” for short term gains, rarely leads to genuine long term peace based on justice  and fairness. This is amply demonstrated by events in the Fiji Parliament over the last fifteen months.

In 2014, despite disagreeing with the imposed 2013 Constitution and Electoral System, Opposition parties thought that by compromising and contesting the elections, they would be “taking Fiji forward”.

It is a tragedy for Fiji, that abiding by Fiji First Party “rules of the game” have only resulted in a farcical parliamentary democracy, with Opposition MPs and their sensible contributions treated with total contempt by the Bainimarama Government, and its MPs, most of whom have pitiful numbers of votes behind them.

The Opposition parties, both inside and outside of parliament, need to urgently discuss whether they should now totally reject the 2013 Constitution, including its Electoral system and all its immunity provisions, and demand that FFP begin negotiating a revised 1997 Constitution and Electoral System, before the next election.

Or keep dancing to “rules of the game” forever stacked against them.

Yash Ghai Lesson Not Learnt

In hindsight, the Opposition Parties should have learnt from the Bainimarama Government’s rejection of their own Yash Ghai Commission even though the Commission had abided by all the Regime’s Decrees, including the demand for immunity.

In hindsight, the Ghai Draft Constitution had many important checks and balances which would have prevented the parliamentary farce that exists today:

* it would have granted immunity only to those who took an oath renouncing their support of illegal regimes;

* the Regime would have to give way to a caretaker government six months before the 2014 elections, preventing the vote buying election tactics, and considerably reduced their numbers in parliament, perhaps even below majority;

* the security forces would have been required to not obey unlawful orders;

* all Regime Decrees, including the draconian media and FNPF decrees, would have had to be modified in order to be consistent with the new constitution;

* all State institutions (including the Speaker and the Supervisor of Elections) would have to be independently appointed and act independently of Government.

Had the Yash Ghai Draft Constitution been accepted, these checks and balances would have probably resulted in a radically different elections outcome  and a far more democratic parliament than what we have today.

The lack of neutrality of State Institutions?

Even before the September 2014 Elections, the neutrality of the Elections Office, the Attorney General, and Solicitor General’s Office was being challenged by Opposition parties and NGOs.

Candidates of the Opposition Parties were disqualified on highly dubious grounds, while that of the FFP were let through, including one FFP candidate (now a Minister) who faced a charge of causing death by dangerous driving.

Was it fair and reasonable of the Speaker to suspend Ratu Naiqama Lalabalavu from parliament for two years, for a slur he uttered outside parliament?

Has the Supervisor of Elections  behaved fairly in deregistering NFP for a triviality?

While the Speaker is expected to be neutral, was her suspension of NFP MPs from parliament fair?

How reasonable and fair have been the Speaker’s decisions limiting the contributions of Opposition MPs (Supplementary questions), often declaring words and phrases (which would be perfectly acceptable in Australian or NZ parliaments) to be “un-parliamentary language”?

Perhaps, the Opposition parties should have expected all these.

Before the benefit of hindsight

Let us remember that the Opposition Parties had agreed to participate in the 2014 Elections in order to “take the country forward” and better protect their supporters’ interests by being inside rather than outside the elected Parliament.

A good precedence for this strategy was when NFP and FLP contested the 1992 elections under the biased SVT Constitution, and eventually bringing in the fairer 1997 Constitution.

But today’s Opposition parties never expected the Bainimarama Regime to  brilliantly manage the electoral system, the electoral institutions (such as the Elections Office and the Electoral Commission), the media, the NGOs and the election processes in the run-up to the 2014 Elections.

They never expected FFP to obtain widespread voter support with populist budgetary allocations using taxpayer funds, just weeks before the election, and promises of more to come, and thereby win decisively.

While SODELPA obtained 15 and NFP 3, Independents and small party candidates who were not able to achieve the 5% threshold imposed by the Bainimarama Regime, were declared ineligible for election despite having more votes than many FFP “successful” MPs, with most of “their” seats going to FFP.

The impact on parliamentary processes has been equally lopsided.

The parliamentary farce

The following events in parliament these last few weeks suggests that parliamentary democracy as practised, is a total farce.

With a trivial justification, still under legal challenge, about the legitimacy of the accounting firm which signed the NFP accounts, the three NFP MPs have been suspended from parliament (a suspension now lifted). There were no questions about the correctness of the accounts, merely about who signed them.

The FFP has rammed through changes in Standing Orders to ensure that anyone (including a Government MP) can now be the Chair of the Public Accounts Committee.

Recollect that the PAC, chaired by an Opposition MP, has been strenuously asking for details of actual large and irregular payments made to some Bainimarama ministers from 2010 to 2013 through a private accounting company, as questioned by the Auditor General Reports.

The Prime Minister’s Office has failed to provide the PAC with the required information.  The public should ask whether a PAC chaired by a government MP would even persist in asking Government such questions.

The public should watch carefully if one result of the suspension of NFP from parliament is that all these questions will be shoved under the carpet.

FFP Hypocrisy

But note how hypocritical it is that the FFP gets NFP suspended from parliament under a technicality that does not involve any misuse of tax-payers funds at all, while the two FFP leaders (Bainimarama and Khaiyum) face serious questions from the Auditor General and the PAC about the actual misuse of large amounts tax-payers’ funds, questions which they are brazenly refusing to answer.

The FFP has also introduced a new rule that any petition must have the support of 40% of the MPs in parliament in order to require it to be considered by a standing committee, which the Opposition do not have, thereby effectively stopping any petitions coming from their thousands of supporters via their parties.

These events make  a mockery of parliamentary democracy, and the good will that the Opposition parties showed in contesting the 2014 Elections.

            Should the Opposition Parties now totally reject the “rules of the game” which are clearly stacked against them?

No Alternative But to Reject Bainimarama’s Constitution

In 2013, Bainimarama imposed the 2013 Constitution on Fiji, without the approval of any Parliament or Referendum, or even the People’s Assembly promised by the NCBBF and People’s Charter.

The public should take on board the 2000 judgement by Justice Anthony Gates Fiji’s current Chief Justice) when he had admonished fellow judges Tuivaga, Scott and Fatiaki:

“Judges should remember their oaths of judicial office to uphold the Constitution. … the Constitution remains unimpugned until pronounced otherwise in court”.

Note also that Justice Anthony Gates correctly pronounced in the 2001 case Koroi v Commissioner of Inland Revenue:

“It is not possible for any man to tear up the Constitution. He has no authority to do so. Usurpers may … in some cases rule for many years apparently outside of, or without the Constitution. Eventually the original order has to be revisited, and the Constitution resurfaces … For the courts cannot pronounce lawfulness based simply on the will of the majority.  … and the courts will not assist usurpers simply because they are numerous, powerful, or even popular.”

No court has pronounced that the 1997 Constitution has been legitimately replaced by the 2013 Constitution.

With no evidence of goodwill from the FFP, it is time for the Opposition Parties to go back to Square One, totally reject the 2013 Constitution (including its immunity and media decree provisions), and start the difficult and long journey towards an acceptable constitution.

Or they can continue to dance to Khaiyum’s tunes for the foreseeable future.

Footnote:

Compromise can become synonymous with  “appeasement”.

If you google the words “costs of appeasement”, some famous examples appear.

Probably the best known historical one is the joyous 1938 announcement by Prime Minister Chamberlain to the British people, “peace in our time”, after he had signed the deeply compromising Munich Agreement allowing Nazi Germany to illegally annex a part of Czechoslovakia (Czechoslovakia itself was not invited to the meeting which included France and Italy).

That appeasement and compromise turned out to be an incredibly costly mistake, which may have encouraged Germany to invade other countries, leading to World War II with all its horrendous costs in deaths and destruction.

There are many more current examples such as US Governments tolerating brutal foreign regimes who appeared at the time to serve US foreign interest, usually accompanied by that morally bankrupt Machiavellian logic, “the enemy of our enemy is our friend”. Often those “friends” turned the guns back on US forces.

 

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