CRITICAL CROSSROADS FOR GOVERNANCE IN FIJI: Background Briefing Paper for Pacific Islands Forum Auckland, New Zealand August 2003

  • 15th August 2003
  • 2003
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Introduction

The Pacific Islands Forum Leaders meeting is an important opportunity to reflect upon and discuss recent developments in the region as well as other areas of common concern and interest. Few would disagree that alongside the crisis in the Solomon Islands, Fiji’s constitutional and political problems have featured prominently in the region over the past few years.

The following summary is designed to offer a brief update on recent developments in Fiji for Forum participants (including partners involved in the Post-Forum dialogue), civil society groups and the media. We believe that these matters are of direct relevance to the Forum agenda for this year, and that they call for a greater measure of collective regional and international responsibility.

Fiji Constitution: some unique features

  • The Fiji Constitution embodies a range of commendable principles and tenets, notable amongst which are a comprehensive Bill of Rights and the concept of power sharing among the different communities. International human rights law forms a fundamental part of the Constitution, representing one of its finest and quite unique features.
  • The power sharing principles are expounded in Section 99 of the Constitution, which also directs how these are to be implemented. Section 99 (5) makes it mandatory for the Prime Minister to include in his or her Cabinet all parties that achieve a minimum threshold of 10% of the total 71 seats in the House of Representatives. Moreover, Cabinet representation must be in proportion to their numbers in the House.
  • Section 99 is a noble attempt to foster nation building and a national identity in a multi-ethnic and multi-faith community that has been wracked by politically-driven racial tensions, division and violence, and three military coups over the last decade and a half. The power sharing principles are also designed to move Fiji away from the more adversarial ‘winner takes all’ Westminster system, bequeathed in colonial times, and towards a more harmonious and Pacific-suited system of governance based on consensus and shared power.

Fiji’s constitutional crisis: recent landmark judgements 1

  • Since the political and constitutional crisis of May 2000, there have been a number of pivotal court rulings. These have pronounced as unlawful and unconstitutional several actions taken by the President’s office, the army commander, and the elected SDL Government headed by Prime Minister Laisenia Qarase. The most recent of these actions has been the appointment of an unconstitutional and unlawful SDL Cabinet in 2001 following general elections.
  • In addition, investigations into the coup of May 2000 and the army mutiny in September 2000, have resulted in the laying of criminal treason-related charges against holders of high public office, including the Vice-President, Deputy Speaker of the House of Representatives, and members of the SDL Government. All of these reprehensible actions have damaged the credibility and public confidence in the institutions of governance in Fiji. They have also compromised the integrity of the highest office in the land, that of the President.
  • In July this year, Fiji’s High Court confirmed the unconstitutionality and illegality of various actions taken by the President in March 2001: his dismissal of Mahendra Chaudhry as Prime Minister; his dissolution of Parliament; and his appointment of Laisenia Qarase as caretaker Prime Minister and all caretaker Ministers. Moreover, the Court concluded that the actions of the President’s office had “consolidated or strengthened the usurpation of democracy” that had occurred in the coup of May 2000.
  • Significantly, the High Court rejected any notion that such actions were necessary, insisting that “there was no dire necessity therefore to veer off the Constitution, to dismiss a Prime Minister and Cabinet unlawfully, to appoint another to dissolve the Parliament that the people had democratically elected … the situation facing the President was difficult, awkward and embarrassing. If carefully canvassed there would have been several lawful ways out of the problem without veering off the Constitution and away from democracy.”
  • Another pivotal legal ruling was delivered last month. In this, the Supreme Court, the highest appellate court, upheld the power sharing principles of the Constitution and directed the Prime Minister to invite the Fiji Labour Party into Cabinet. The Court concluded that “the obligation is clear. It is not affected by perceived policy differences between the Prime Minister’s Party and the Fiji Labour Party. It must be implemented without further delay.” The Supreme Court also instructed the Prime Minister to allocate portfolios in proportion to the Party’s representation, to consult with the FLP Leader, and to negotiate in good faith.
  • Most importantly, this landmark judgement honours the noble spirit and judicious intent underlying section 99 of the Constitution (on power sharing). It seeks to ensure that these will be fully upheld in the interests of constitutional government as well as multi-racialism, national reconciliation and peace in Fiji.

Negotiations over Fiji’s multi-party government: governance and constitutional issues

Since the ruling of the Supreme Court, negotiations between the Prime Minister and FLP Leader, Mahendra Chaudhry, have got underway. However, numerous issues of concern have emerged, all of which have implications for both national and regional standards of governance, accountability and constitutionalism. Notable amongst our concerns are the following:

  • The Prime Minister proposes to retain his existing Cabinet, and to merely add on representatives from the Fiji Labour Party. This fails to address the fundamental problem of the unconstitutionality of the existing Cabinet, confirmed by the Supreme Court ruling of 18th July 2003. The full constitutionality of Cabinet can only be restored by starting afresh, but the Prime Minister refuses to ask any of his Ministers to resign.
  • Alarmingly, the existing SDL Cabinet, which the Prime Minister is determined to retain, includes several individuals closely involved in the terrorism of the May 2000 coup. Two of his Ministers have been charged with treason-related offences, one of whom is the leader of SDL’s coalition partner, the Conservative Alliance Matanivanua (CAMV). Another Minister is currently under police investigation, while two of the Prime Minister’s personal nominees in the Senate face criminal charges in relation to the coup and the army mutiny of 2000. Two of the government’s incumbent ambassadors, one representing Fiji at the United Nations and the other Fiji’s High Commissioner to Papua New Guinea, are under police investigation.
  • In addition, other senior public office holders face treason-related charges, notably the Vice President and the Deputy Speaker of the House of Representatives, a senior member of the Prime Minister’s coalition partner who has also been disbarred by the Fiji Law Society.2
  • This appalling situation is a grave indictment of the standards of governance currently prevailing in Fiji. It significantly erodes the integrity and credibility of the SDL government, as well as that of Parliament. The Fiji Labour Party has called on the Prime Minister to refrain from protecting members of his government who face criminal charges for their involvement in the terrorist 2000 takeover of Parliament.
  • The Prime Minister has refused to comply with section 99 (6) of the Constitution which insists that any person invited to join Cabinet, but whose party does not meet the 10% threshold, must be accommodated through the entitlement of the Prime Minister’s own party. Contrary to these clear guidelines, Mr Qarase has reduced the proportional entitlement of the Fiji Labour Party, the only party with a constitutional right to be represented in Parliament.
  • The Prime Minister has offered the FLP 14 Cabinet positions in a bloated, top heavy Cabinet of 36. This fails to respect the rules of proportionality prescribed by the Constitution and Supreme Court, leaving the FLP unlawfully under-represented. It also inflates Cabinet to an absurd size, over 50% of the House of Representatives. The budgetary implications of this are serious, but we are also deeply concerned at the total disregard shown for our taxpayers and struggling poor, who will have to pay the price for this misuse of public funds at a time of rising poverty levels and material hardship. Ultimately, it raises serious questions about standards of governance and responsible political leadership.
  • The power sharing principles of the Constitution have also been grossly abused by the piecemeal and subordinate portfolios offered to the Fiji Labour Party by the Prime Minister. Many represent minor divisions of existing ministries with token staff and meagre resources. Of the 14 ministries assigned, 10 have a permanent staff establishment of less than 15 persons.
  • Of these 10 ministries, three have just six permanent staff, two have only three, and one ministry has just one permanent staff member whose sole function is to oversee the payment of pensions to war veterans. Other assigned portfolios propose to consign FLP Ministers to overseeing marginal activities like recreational parks.
  • The budgetary allocations to FLP Ministries compound this anomaly. A nominal 2.47 per cent of the total 2003 Budget ($33 million) will be assigned to them. Of this, close to 50 per cent is allocated to the Prisons Department. Two-thirds of their allocated resources will be absorbed by the activities of just two ministries (Prisons and War Pensions).
  • This derisory configuration of Cabinet is a sorry comment on the Prime Minister’s leadership at a critical juncture in Fiji’s political history. It reflects poor judgement, and is certainly not in good faith, as instructed by the Supreme Court. It cannot be construed as fulfilling the power-sharing obligations of the Constitution that are designed to help forge a meaningful and equitable partnership in Cabinet between the major (qualifying) political parties. Overall, the Prime Minister’s proposed Cabinet make-up would appear to be in contempt of court.

Fiji’s constitutional crisis: a regional and international concern

  • Fiji’s constitutional crisis and the continuing absence of good governance are not simply domestic matters. They have direct implications for the region and the international community, not least because Fiji is home to several regional organisations, including the University of the South Pacific, as well as to the multi-lateral and bi-lateral donor community. There has been a serious violation of international principles on equality and human rights, and a disturbing disregard for the Forum’s own adopted charter of good governance, notably the Biketawa Declaration.
  • We believe that it is our collective duty as Pacific Island leaders to ensure that such commitments are fully upheld in practice if they are to be at all meaningful. It is also in the interests of regional security and governance that we do not turn our backs on breaches committed by any single Forum member country. This would set a dangerous precedent for the future.
  • The crisis in the Solomon Islands is resulting in positive intervention. We ask for no less for Fiji.
  • The wider ramifications of Fiji’s constitutional breaches have also become apparent outside the region. In March 2003, the United Nations Committee for the Elimination of All Forms of Discrimination (ICERD) emphatically condemned the policies of the SDL government, identifying 22 different areas where these are racially discriminatory and in breach of the Articles of ICERD. These include policies and practices with regard to land, poverty and affirmative action, the security forces and the public service. The UN Committee has urged the SDL government to address all areas of racial discrimination.
  • One of the government’s most offensive breaches of international protocols on human rights and non-discrimination has been the racially discriminatory policies introduced by the SDL government in late 2001 under the guise of affirmative action for Fiji’s indigenous community. These policies are ironically perpetrated through social justice legislation. As consequential legislation of the Constitution, the Social Justice Act is supposed to provide an important mechanism for promoting social justice and equity, and implementing human rights principles. However, these fine objectives have been crudely abused by the SDL government, which has instead promoted discrimination principles in the areas of schools assistance and educational scholarships, small businesses and access to land.
  • Fiji’s escalating poverty and unemployment demand policies of social reform that are just and fair, untainted by any form of discrimination or bias. The principles of good governance also demand such equity, along with inclusive, participatory government, and policies that are responsive to the needs and voices of the grassroots community. We cannot afford to ignore this. In fact, the failure to respect the basic needs and rights of the community will pave the way for greater social unrest and political instability both domestically and regionally.
  • In Fiji, the government’s failure to address poverty is already resulting in disenchantment amongst the urban youth, greater mental health problems, high suicide, and growing drug abuse and crime.

Other examples of bad governance

  • The Fiji Constitution has some exemplary provisions to enhance the accountability and integrity of public office holders. Section 156 of the Constitution prescribes some specific principles for a code of conduct. Notable amongst these is the clear instruction that such office bearers must so conduct themselves in relation to the performance of their public duties that there is no conflict of interest between their private interests and public duties. They are expressly forbidden to use their office for private gain; to allow their integrity to be called into question; or to cause respect for, or confidence in the integrity of government to be diminished. The Constitution also directs that the Parliament “must, as soon as practicable after the commencement of this Constitution” legislate accordingly.
  • In line with its constitutional obligations, the People’s Coalition Government tabled a Code of Conduct Bill in 2000 but this was not enacted due to the May 2000 coup. Since then, the SDL government has shown that it has no intention of enacting this critical legislation. Most recently, in the House of Representatives on August 7th, 2003, the Attorney General and Minister for Justice announced that law reform with regard to bribery and corruption was a ‘little difficult’ and ‘more complex’ and that this would require more time. He indicated that Code of Conduct legislation was unlikely to come to Parliament until some time next year, but when, he was not quite sure.
  • This decision of the SDL government is in clear breach of the Constitution, and such a cavalier attitude to the issue of corruption is of great concern to us as a Party, as well as to the community at large. The government’s lack of interest in introducing legislation to curb corruption is consistent with its own dismal record of managing public funds.
  • In its two short years in office, the country has seen a number of shocking financial scams, notably in the agriculture and public works departments. Some $30 million dollars have been squandered and misappropriated as a result. Damning evidence of corruption in the Public Works Department has emerged as a result of investigations conducted by the Auditor General’s Office and Parliament’s Public Accounts Committee.
  • Now, five senior Ministers in the SDL Government including the Prime Minister, Minister for Finance and former Governor of the Reserve Bank, and Foreign Affairs Minister, have registered a private, commercial company, the Duavata Initiative Ltd (DIL), with themselves as its only directors. The legal documents of DIL are signed by the Attorney General and Minister for Justice.3 The articles of association give the directors sweeping powers to negotiate company rights, concessions and privileges with government and municipal authorities. They are also permitted to engage in retail and other commercial activities, and, more sinisterly, to open offices offshore.
  • Unquestionably, this extraordinary private commercial undertaking presents a conflict of interest for the Prime Minister and his senior Cabinet Ministers. It defies the ministerial code of conduct, and is in flagrant disregard of Section 156 of the Constitution. Ultimately, such unethical and unlawful action reveals poor judgement and a government bereft of integrity, accountability, and acceptable standards of leadership. It opens the door to further corruption and abuse of public funds in Fiji.

Conclusion

In the Biketawa Declaration of October 2000, Forum Island leaders made a courageous commitment to the principles of good governance, therein embracing the idea of open, transparent, accountable, participatory, consultative, fair and equitable government.

They also affirmed the region’s belief in the concepts of individual freedom, equality, and democracy, including the peaceful transfer of power, the rule of law, independence of the judiciary, and just and honest government. Undoubtedly, the Declaration represents a milestone in regional co-operation. It is a charter for long-term stability, peace and development. As Pacific leaders, we all bear responsibility for upholding and implementing its provisions.

Here in Fiji, the Labour Party will continue its struggle to restore constitutional government, law and order, and basic human rights. Despite our best efforts, the country continues to be besieged by unacceptably poor standards of governance, most notably:

  • A government that fails to respect the principles of constitutional, lawful and inclusive government, and of fundamental human rights;
  • A government that includes Ministers and Ambassadors facing criminal prosecution or investigation in relation to the 2000 terrorist take-over of a democratically elected government;
  • A government that lacks transparency, honesty and integrity;
  • A government that shows little interest in investigating and eliminating the high levels of corruption;
  • A government that is disinclined to legislate a constitutionally-required code of conduct for public office holders;
  • A government that practices racial discrimination under the spurious guise of social justice and affirmative action, in breach of the United Nations Convention on the Elimination of All Forms of Racial Discrimination (CERD);
  • A deteriorating law and order situation, including an increase in violent crime, terrorists at large, and illicit arms in the community;
  • Growing inequalities in wealth and rising levels of urban and rural poverty; and
  • A lack of fair and equitable policies conducive to social justice and people-centred development.

These poor standards of governance not only pose an internal security threat for Fiji. They also threaten security at the regional level. Domestic terrorism, state corruption, and unconstitutional government in Fiji provides a fertile ground for global terrorism, the international arms trade, drug trafficking, money laundering, and people smuggling, which number among the many emerging security threats to our region.

In order to counter both internal and regional security threats, it is imperative that we bolster the institutions and culture of good governance and human rights within each and every Forum island member state. This week’s deliberations are a timely opportunity to strengthen the obligations of member countries to comply with the provisions of the 2000 Biketawa Declaration, along with other relevant Forum initiatives such as the Forum Eight Principles of Accountability and the 2002 Nasonini Declaration on Regional Security.

It is useful to recall that last year’s Nasonini Declaration reaffirmed the commitment of Pacific leaders “to good governance practices at all levels as a key fundamental strategy for addressing some of the difficult and sensitive issues underlying the causes of tension and conflict in the region.” We welcome the Forum’s efforts to draw up a regional leadership code, and look forward to its expeditious completion and implementation.

Fiji has demonstrably failed to comply with several provisions of the Biketawa Declaration. This calls for scrutiny and action by the Forum. We submit that if regional declarations are to have any effect, it is incumbent upon the Forum to ensure compliance on the part of member states.

It is also an opportune time for Forum leaders to make a more serious commitment to the universal principles of human rights and good governance as enshrined within various international instruments such as the Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Elimination of All Forms of Discrimination Against Women, the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Convention on the Rights of the Child, and the Universal Declaration on Human Rights.

There is growing recognition that good governance and human rights are essential for sustainable development to take place. It is also acknowledged that the protection of human rights is important to national and regional security. If we fail to recognise these links, or to act on them, we fail our people, particularly the most disadvantaged and needy in our island communities. We will also sow the seeds for further regional instability and violence in the future.

Mahendra Chaudhry,
Parliamentary Leader,
Fiji Labour Party.