Is Fiji still a democracy?

Is Fiji still a democracy?

 By Graham Leung & Mary Chapman

Graham Leung is a lawyer and former president of the Fiji Law Society.

Mary Chapman was Secretary General of the Fiji Parliament between 1996 – 2006.

Introduction

Democracy takes different forms. But all draw on the principle of government of the people, by the people, for the people.

The people are at the centre. They elect their government through their votes and have the right to peacefully change it by the same method.

Every democratic system gives people freedoms and rights. The 2013 imposed Constitution, has a lengthy list of these.

They include freedom of speech, thought, religion, belief, information and the press; protection of privacy, property and land ownership; the right to assemble, demonstrate, present petitions and make political choices. Access to the law and justice and an independent, impartial judiciary are fundamental.

The Constitution is the product of a military dictatorship that seized power from an elected government in 2006. Led by the Republic of Fiji Military Forces (RFMF) Commander Voreqe Bainimarama, the regime was reluctant to give up power.

It missed a Pacific Islands Forum 2009 deadline for returning to democracy. After drawing up a new Constitution – the one now in force – it called an election in 2014, and won easily with its Fiji First Party.

But in a 2018 poll, it lost much support, scraping in with a small majority. The next general election is scheduled for next year.

Mr. Bainimarama and his closest colleague, Mr. Aiyaz Sayed-Khaiyum, the Attorney General, have always maintained their Constitution is democratic, and say it gave Fiji “true” democracy for the first time.

It espouses values that “underlie a democratic society” based on human dignity, equality and freedom.

As we considered the question of whether Fiji is still a democracy, our attention fell on section 131(2) of the Constitution. This gives the RFMF overall responsibility to ensure at all times the security, defence and well-being of Fiji and all Fijians.

Well-being is defined as good health, happiness and prosperity.

Achieving this for a nation is precisely the mission of a democratically-elected government.

Helping people to be happy, providing good health services and opportunities for financial and social improvement will be in the manifesto of every political party contesting the next election.

In a democracy there is no role for an army to ensure the well-being of the people.

While section 131 (2) of the Constitution is explicit, it does not explain how the army might go about achieving national well-being, or where it would acquire the skills to do this.

The Constitution proclaims however that it has this responsibility at “all times.”

This means today, tomorrow and into the future.  What then is the army doing to fulfill this duty it should not have?

Or is it simply ignoring its constitutional obligations? These questions are not provocative. They are natural queries for those with inquiring minds.

Section 131 (2) virtually nullifies assertions about the democratic character of the Constitution.  We found it difficult to get past it.

There was a serious concern about the military’s commitment to democracy a few months ago in an interview given by then Brigadier-General Ro Jone Kalouniwai, recently appointed army commander.

He characterised Fiji as a “liberal democracy” and then argued that at times of national emergency such as the Covid-19 pandemic, “our leaders have good reasons to stifle criticism of their policies by curtailing freedom of speech and freedom of the press.”

That goes against the very essence of democracy.

A Defence White Paper, Parliamentary Paper published in 1997 stated:

“The starting point in any free democracy is that the military is one of the functions of the central national government and must be the servant of its policies and priorities. The ethics of the profession of arms must always include, as it does in all established democracies, total loyalty to the government in power and must reject as unacceptable any active political endeavours by servicemen either collectively or individually to act otherwise than as directed by the government.”

In considering the current political framework, we gave thought to aspects of what we call “local democracy”.

One of these is electing MPs to represent specific constituencies. This gives an electorate access to an MP dedicated to looking after their interests based on local knowledge, conditions and needs.

MPs may live in the constituency from which they were elected, or spend much time there, sometimes renting an office to meet directly with voters.

This local engagement between MPs and those who put them into Parliament was previously an important element of Fiji’s democratic landscape.

But it was removed by the Bainimarama/Sayed-Khaiyum government.

Instead of concentrating on serving a certain constituency, getting to know the people there, and speaking for them in parliament, MPs now are supposed to be looking after all the voters everywhere.

In theory, MP’s are required to have expert understanding and appreciation of the peoples’ circumstances in every corner of Fiji: where a new bridge is needed in Macuata, say, or a seawall in a particular part of Rewa; an Irish crossing in Taveuni, or a nursing station in Lau.  Exactly how this is working is unclear.  This is impossible given Fiji’s geography

The “one constituency” model has damaged democracy and made it more distant from the people.

Local Government

Not long after the military coup of 2006, municipal councils were shut down. The Mayors and councillors elected to work for the ratepayers were sacked.

All this meant a further weakening of political rights, the very rights provided for in the constitution, and a diminishment of democracy.

No more could the ratepayers turn to their town or city councillors when they had a concern or problem about civic affairs.

The government appointed administrators to guide and manage municipalities. They are not accountable to the ratepayers and appear to confer and make decisions privately. They answer only to the government.

One can only conclude that the government dumped the elected councils because they saw them as a competing source of authority that might stand in its way.

Parliament

Back on the floor of Parliament, the story of democracy is one of decline.

As with all the other democratic setbacks, it is related to the difficulties of a military dictatorship adapting to accountability – being answerable to the people through parliament.

For a country like Fiji where democratic norms are still taking root and remain under the shadow of the military, the institution of parliament is essential for establishing the government’s legitimacy in the political system and in the eyes of the public.

The record of Fiji’s parliament since the imposed 2013 Constitution, has not been impressive. For example, they sit for only 7 weeks in a year!

What do the MPs do in the remaining 45 weeks for which they are being paid by taxpayers?

After the general elections of 2014, Standing Orders (SO) were adopted, similar to democratic parliaments elsewhere. Standing Orders are parliament’s internal rules for its own conduct.

In parliament there are procedures to follow; and questions, motions and challenges from the Opposition.

This democracy business was very burdensome. So those in power decided to do something about it.

Government used its majority in parliament to change the Standing Orders. Since 2014, the Standing Orders have been changed at least five times.

They have been watered down so as to diminish the accountability of government to the legislature.

Under section 71 (1) of the 2013 Constitution, “Parliament may make standing orders and rules for the order and conduct of business and proceedings in Parliament and its committees and for the way in which its powers, privileges and immunities may be exercised and upheld.”

Standing Order 51 deals with ‘motions’ for Bills to proceed without delay.

It is being abused. Most, if not all Bills are now being rushed through parliament.

For the parliamentary sessions between 2015 – 2017 alone, 104 laws (excluding the Budget and its consequential legislation) were rushed through, using SO 51.

Most, if not all laws, took one to two days to go through all the 3 stages of a Bill’s reading, to its final adoption.

The changes have effectively and weakened the Opposition, making it more difficult for them to hold the government accountable to the people.

NFP leader Biman Prasad said,

“Parliament is supposed to be the supreme oversight body but it is thoroughly compromised because of the way in which government controls it through restricted provisions in the Standing Orders.”

The government did not like the idea of the Public Accounts Committee (PAC) being chaired by the Opposition, as was previously the case under the old Standing Orders.

When Mr Prasad became chairman of the PAC and started enquiring about salaries of ministers in the interim government paid by a private firm, the Standing Orders were changed, and he was removed.

Now, the PAC is chaired by a Government Member, which means that there is no check and balance or oversight of government spending, with the result that accountability is weakened.

Debates in parliament are restricted, and tightly controlled – because government decides on Opposition questions and motions, so if they do not like them – they vet, oppose them in the Business Committee, and get them thrown out.

Mr Prasad said, “Parliament is totally controlled by the executive government instead of the executive government accountable being to parliament. People outside of parliament don’t realise how biased the parliamentary processes are against the Opposition.”

Rushed, ill-considered legislative changes have been introduced in the name of modernisation and efficiency, changes that leave democracy and freedom, weaker and poorer.

Under the amended Standing Orders, less than 2 days are given before the gazetting of bills, ahead of the first reading of a Bill.

In previous parliaments, no less than 30 days were given to MPs to study Bills to ensure that they, as well as members of the public, were given enough time to research and study them, and to seek the views of the people before parliamentary debates.

Complex, highly technical and often lengthy Bills (for example, Bill 45 of 2020, Trademarks Bill – 79 pages, Bill 31 of 2021, Climate Change Bill – 93 pages), are poorly scrutinised and passed into law, without a thorough debate on their content and efficacy.

Seriously, how realistic is it to expect lawyers let alone lay persons to understand these new laws without proper consultation?

Law making by “stealth” means that the public including stakeholders, are often unaware of the content and implications of new laws.

There appears to be a disdain for parliamentary traditions and propriety.

Personal insults and misogynous comments against women MPs about their dress and conduct are used as political weapons to reduce their legitimacy and standing.

The dignity that parliament was once known, has all but disappeared.

Statesmanship is a lost craft in the Fiji parliament.

It has been replaced by a mean spiritedness which starts from the top.

Law making & lack of consultation

Despite the objection of some prominent chiefs from the provinces of Ba and Nadroga against changes to the Taukei Land Trust Act ((TLTA), it was hurriedly debated on a Friday, passed by parliament, and given presidential approval the next day.

A petition signed by more than 20,000  people against Bill 17, was ignored.

The amendments to the TLT Act were railroaded through parliament.

It was later reported following Bill 17’s enactment, that attempts to consult the people of Nadroga province had been rejected by their paramount chief (FT 16 August 2021).

Many landowners in the province were unhappy that government’s belated efforts to consult them were “after the fact”, as the legislation had already been signed into law.

Bill 17 is a good example of government legislating changes to land laws without prior consultation with Fiji’s indigenous people.

Last month, parliament passed the Electoral Registration of Voters Amendment Bill after a debate of one hour.

As a result, the law now requires the applicant for registration as a voter to state the person’s full name as specified on his or her birth certificate, and to also be accompanied by his or her birth certificate.

Former Supervisor of Elections and constitutional lawyer,  Mr. Jon Apted said that with no public consultation, the new laws would disproportionately burden many married women and members of a community who do not use their birth names in everyday life.

Mr. Prasad said the Bill was the product of dictatorship, pseudo-democracy and the ‘My Way or the Highway’ approach to governance.

Freedom of Speech / Expression

An application lodged by the NFP for a permit to march on Fiji day in 2019 was rejected

A planned protest against the dismissal of WAF workers by the Fiji Trades Union Congress (FTUC) in May 2019 was cancelled as an application for a permit was rejected by the authorities.

More than 30 people were arrested, including FTUC national secretary Felix Anthony and their office raided and searched by the police.

Mr Anthony said that six previous applications for a march and rally lodged over the past two years had been declined at the last minute by police, without reason.

In June 2020, police shut down protests at the University of the South Pacific’s Laucala campus.

On 24 August this year, a medical doctor, Jone Hawea, who was critical of the government’s COVID-19 vaccination policy, was arrested in the middle of the night at his home in Lautoka, and driven 200 km to Suva to be interviewed by police.

Why could he not have been questioned in Lautoka which also has a CID section?

Dr Hawea was released 48 hours later without charges. What was his crime? He was reportedly interrogated for spreading misinformation about COVID-19 vaccine.

The president of the Law Society, Wylie Clarke condemned the doctor’s arrest saying, “Dr Hawea, like every other person afforded protection under the Constitution, has the right to freely express his views as long as he does not commit an offence or breach another person’s rights.”

Opposition Whip, Lynda Tabuya, Biman Prasad, former prime minister Mahendra Chaudhry and others were taken in for questioning by the police on their positions on Bill 17.

None of them have been charged with a criminal offence.

So, what was the purpose of grilling them at the police station?  A clear a pattern of intimidation and harassment of anyone who disagrees with the government, is apparent.

Mr. Prasad complained to Parliament on 30 July 2021, “When we issue statements on a Bill which is presented to Parliament which becomes a public document, which becomes an issue for public debate, we are held by the police. I visited CID Offices twice already. This is unheard of in a genuine democracy.”

According to Freedom House, respect for assembly rights has worsened in Fiji. The widely respected Amnesty International shares these views.

The United Nations Special Rapporteur on the rights to freedom of assembly has been reportedly refused entry into Fiji since 2014. It is unclear why his visit has been unwelcomed.

In its 2020 annual report, the United States State Department observations on Fiji concluded, “Significant human rights issues included…… restrictions on free expression, such as substantial interference with the right of peaceful assembly…”

Media Freedom

Fiji’s oldest daily, the Fiji Times, seems to be a favourite “whipping boy” of the government.

In April 2015, a former education minister Mahendra Reddy criticized the newspaper over comments by the then Opposition leader Ro Teimumu Kepa who said that a move to prioritise rural students in government-run boarding schools in Suva was aimed at weakening the Taukei community.

The Prime Minister admonished the Fiji Times for reporting the comments, saying they were divisive and a threat to national unity.

In May 2017, the Attorney General said the Fiji Times had been involved in a lot of mischief making about the sugar industry.

In July 2020, he accused the newspaper of creating sensationalised headlines to cause “disquiet among ordinary Fijians”.

Last month, assistant minister Selai Adimaitoga joined criticism of the Fiji Times.

It is not the job of the media to flatter the government, but to hold it accountable.

Regular criticism of the media is likely to lead to a loss of public confidence in journalism as a legitimate, fact-based check on government power.

It could also lead to gradual erosions of press freedom, causing a dark and menacing cloud under which the media are forced to operate.

America’s third president Thomas Jefferson said, “our liberty depends on the freedom of the press, and that cannot be limited without being lost.”

We, the people, must guard against any attempts to throttle the independence of the media.

Concluding observations

If a functioning democracy includes an electoral system for choosing and replacing the government through free and fair elections, active participation of the people in politics and civic life, the protection of the human rights of all citizens and the rule of law, the evidence shows that Fiji falls far short in satisfying these requirements.

There is nothing democratic about an electoral system that uses a skewed method of electing representatives to parliament, enabling a candidate who receives less than 500 votes to be elected over one who receives 2814 votes.

There is nothing democratic about a parliament where the Opposition is, for all intents and purposes, muzzled.

Freedom of expression and assembly have been seriously curtailed.

The values that underlie a democratic society, based on human dignity, equality and freedom in section 3 of the Constitution, have been degraded.

Worryingly, most people in this country take democracy so much for granted that many hardly notice any longer whether it exists, how it is exercised, or the ways in which it is being undermined by authoritarian leaders.

In a week where we have marked the anniversary of Fiji Day, the words of our national anthem, “Land of freedom, hope and glory”, ring hollow.

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