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“Justice Gates throws out electoral challenge” (edited in FT 31/12/2016)


Justice Gates throws out electoral challenge (edited in FT 31/12/2016)

Fiji faces many critical challenges in the new year 2017.

One important electoral challenge was surprisingly indicated in Chief Justice Anthony Gates’ Submission to the Standing Committee on Justice, Law and Human Rights on the Code of Conduct Bill (read Mere Naleba and “Gates not happy with system”,  FT 8 Dec. 2016).

Justice Gates was apparently “disappointed that there wasn’t a constituency system in the new parliamentary arrangements” hence no mechanism whereby MPs could go “back to the people who had elected or who haven’t elected you and get the feedback as to what they thought was going on in Parliament”.

This is of course a logical consequence of the “one national constituency system”  imposed on Fiji by the unelected Bainimarama Government in 2013.

Not having local constituencies clearly undermines one crucial benefit of parliamentary democracy whereby elected MPs who do not perform as expected by their voters, face the prospect of being rejected by the same voters at the next election.

Opposition political parties and independent electoral experts had made this very same point when the electoral system (and the 2013 Constitution) were imposed on Fiji, but to no avail.

While Gates’ recent submission refers only to an electoral weakness, the public ought to remember two other judgments by Justice Gates in 2001 and 2000, where he reminded the Interim Qarase Government after the 2000 coup, of the importance of laws regarding constitutional legitimacy.

Why it was Justice Gates making these comments and not the Fiji Electoral Commission is another story.

There is of course a far bigger story which examines the personal role of Chief Justice Anthony Gates since his 2001 judgement:  why does Fiji’s Chief Justice not comment on the massive human rights problems created by a constitution imposed by a military government deemed illegal in 2009 by the highest court in the land (Appeals Court), and instead zooms in on a relatively minor electoral issue?

The 5% Threshold

Most electoral experts agree that while the current electoral system has a positive feature in that the number of seats in parliament are proportional to the votes received by political parties, one clear weakness is that “winning” parties (or Independents) must receive at least the 5% of all votes cast or a massive 27 thousand votes.

Thousands of voters, who voted for small parties like the Fiji Labour Party or the People’s Democratic Party or for Independents, were effectively disenfranchised because their choices did not achieve the 5% threshold (as had been warned by critics).

It made a mockery of the frequent advertisements by the Bainimarama Government that 1 person = 1 vote = 1 value.

Collectively, these wasted votes (some 36 thousand of them) represented more than 4 seats in Parliament, which were effectively transferred to the larger parties (some 3 to Fiji First Party and 1 to SODELPA).

The 5% threshold, which worsens the “one constituency problem”, must be removed.

The one national constituency problem

It is abundantly clear after the 2014 Election that having the “one national constituency” enabled the Fiji First Party, probably as planned, to focus their elections strategy on the populist electoral support of Bainimarama (candidate number 279) who thereby personally received a massive 202 thousand votes.

Effectively, the majority of the other Fiji First Party candidates (except for a few canny ones), became superfluous, the last one recently getting into Parliament having less than 600 votes. They could have been any Tom, Dick, Harry or balabala.

In contrast, many other candidates from small parties disqualified by the 5% threshold rule, received more votes but were not elected.

There were 6 from NFP, 4 from FLP, 4 from PDP (including one unknown Vuniyayawa with a hilarious 4956 votes (his candidate number was 297); 2 from One Fiji Party (one with 2788 votes), and even an Independent (Roshika Deo) with 1,055 votes.

The public might note that these “unsuccessful” candidates had far more votes than that received by several current Ministers and Assistant Ministers such as Akbar, Usamate, Delana, Sudhakar, Koya, and Bhatnagar.

Weakens Government MPs

FFP supporters should note that the current electoral system discourages internal FFP democracy and accountability to voters.

With most FFP MPs (including the Speaker of the House) personally receiving small numbers of votes, they have no voter base to back them up, and hence to survive, must be totally subservient to the wishes of the FFP leaders.

The FFP MPs must blindly support their leaders’ motions, however undesirable, and oppose every Opposition motion, however sensible, as has already been illustrated in several cases.

Having a less than independent Speaker of the House has also allowed the expulsion from parliament of Opposition MPs for minor reasons (thereby denying thousands of voters their voice in parliament), and also discouraged strong independent views in Parliament on strange grounds ruled by the Speaker as  “un-parliamentary language”.

None of this is good for parliamentary democracy.

But some canny FFP candidates

I suspect that many Fiji First Party candidates in the 2014 Elections regretted that they followed “party orders” and asked their voters to vote for Bainimarama and his Candidate Number 279, thereby not getting enough votes for themselves.

But do not forget the canny (smart) Fiji First Party candidates who made sure that they received enough personal votes, like: Khaiyum, Parveen Bala Kumar, Kubuabola, Reddy, Nadalo, Tikoduadua, Cawaki, Naiqamu, Brij Lal right down to Jiko Luveni and Inia Seruiratu.

You can be sure that even if the Bainimarama Government refuses to budge from the one constituency system, the candidates in the 2018 Elections are going to campaign for votes for themselves, not some “leader”.

The public might want to come out in full support of Justice Gates idea that there ought to be specific constituencies for candidates and voters.

Of course, there can be other improvements as well.

Other improvements

There are many other possible improvements to the electoral system  in addition to having a geographically practical number of constituencies.

There can be the addition of a Closed List system to ensure proportionality as well as increase the number of women in Parliament (through appropriate placement on the Party Lists).

The ballot papers must allow Party symbols and photos to assist voters

Far more important, there must be removal of government control over the Elections Office, Electoral Commission and MIDA.

There must also be removal of all legislation, including the many decrees that discourage the media and journalists performing their necessary role of “watchdog on Government” although the media “lapdogs” will happily lap on.

Unfortunately, such comprehensive changes, which must meet with the approval of Opposition parties,  require more than just “tinkering” with the imposed 2013 Constitution and electoral system.

Gates’ broader constitutional challenges

The Fiji public might remember a 2001 case Koroi v Commissioner of Inland Revenue in which the learned Justice Gates had pronounced (his words in italics):

“It is not possible for any man to tear up the Constitution. He has no authority to do so.  The Constitution remains in place until amended by Parliament, a body of elected members who collectively represent all of the voters and inhabitants of Fiji

Usurpers may take over as they have in other jurisdictions, and 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.”

Gates was of course talking about Qarase’s attempt to abrogate  the 1997 Constitution following the 2000 coup.

I suspect that Justice Anthony Gates, given his personal role in legitimizing Bainimarama’s 2006 military coup, would not be particularly keen to apply his 2001 judgement to the Bainimarama Government’s purported abrogation of the 1997 Constitution.

But the Fiji public cannot forget that that the 2013 Constitution and its electoral system has also been imposed on Fiji without due legal process, or parliamentary or popular approval, and indeed, against the opposition of all other political parties, just as Rabuka’s 1990 racist constitution had been opposed by Opposition parties.

While some might think that the results of the 2014 Elections “validates” the 2013 Constitution, Gates’ 2001 judgment stated clearly “the courts cannot pronounce lawfulness based simply on the will of the majority”.

The public may be reminded that the many campaigning issues in the 2014 Elections did not include the legitimacy of the 2013 Constitution or the suitability of the electoral system.

No need to reinvent the wheel

The public might care to remember that the Bainimarama Government had once upon a time appointed the Yash Ghai Constitution Commission to revise the 1997 Constitution and it had consulted widely throughout Fiji and with international experts.

Despite being summarily rejected by Bainimarama and his advisers (on unconvincing grounds), the Yash Ghai Draft Report had many positive elements some of which addressed the current weaknesses.

However weary the Fiji public may be of the political instability and the social discord faced for the last thirty years, these constitutional issues must be revisited for the sake of the future generations.

It is unfortunate that NGOs like Citizens Constitutional Forum and the many “Old Hands” who used to agitate energetically for constitutional reform after the 1987 coups, appear to have gone into hibernation after the 2006 coup, some rather conveniently.

But then, it might be an opportune time for  a new generation of younger, less tired and less tainted activists to take up the cudgels for  electoral and constitutional reform.

They can take encouragement from Justice Gates’s recent submission that people “should not be frightened” to bring general grievances forward.

As Gates would himself probably ruefully acknowledge with respect to his 2001 judgments, such advice is easier to give than to implement.

Judiciary postscript 1:

One might note that currently shoved under the national carpet is the Pandora’s Box which has been opened by the recent judgement of the Fiji Court of Appeal comprising Justice William Calanchini, Justice Almeida Guneratne and Justice David Alfred (FT 30 Nov. 2016), that the Fijian Supervisor of Elections (Saneem) must comply with all the decisions and directions given to him concerning the performance of his functions by the Fijian Electoral Commission and that he was wrong not to do so.

The Electoral Commission had received objections against Parveen Kumar and had ruled that the Fiji First candidate be disqualified from the National Candidates List. They had also ruled that the Fiji Labour Party candidate Steven Singh be reinstated in the final list of candidates but Mr Saneem had gone ahead without the instructions of the commission.

Parveen Kumar, who the Electoral Commission had disqualified from standing,  is a Minister in the current Bainimarama Government. Should Parveen Kumar now resign from Parliament given that he should not have been allowed to stand in the first place?

Should the Supervisor of Elections (appointed by the Bainimarama Government without political consensus) now resign given that his judgment was blatantly and unreasonably wrong given what “common sense” would have indicated?

There are many nationally important legal issues that the Chief Justice Anthony Gates and the slumbering emasculated Fiji Law Society could exercise their collective minds on, rather than the lack of constituencies in Fiji’s electoral system.

Judiciary postscript 2

Fiji can be encouraged that the judiciary (which Justice Anthony Gates heads) can be given some well-deserved credit, with two politically difficult judgments they have made in recent months.

The first is the Fiji Appeals Court decision against the Supervisor of Elections (as outlined above).

The second is the conviction by Justice Aluthge of eight policemen and a soldier, of the rape and sexual assault of Vilikesa Soko (who later died of his injuries), and the perversion of the course of justice.

While there is a general feeling among critics of the Bainimarama Government that the Sri-Lankan dominated judiciary cannot be trusted to deliver unbiased judgments, these two cases at least suggest otherwise. Some judges, even if hand-picked by the political masters of Fiji, will abide by the principles of their profession and not be hand-maidens of injustice.

What happens eventually to policemen and soldiers convicted and jailed for human rights abuses is unfortunately another story for the public to follow, given that the current Commissioner of Police and the current Commissioner of Corrections (Prisons) are both ex-military personnel, with neither having clean personal records.

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