Our new constitution is constructed on the understanding that as a unitary state the Republic of Fiji is to continue to be a parliamentary democracy.
In this context, I am sure that we are all interested in engaging in speculative discussions on the kind of parliamentary democracy that we expect to see emerge in Fiji as the combined outcomes of the interplay between the various principles of governance entrenched in the Constitution, and the various political and sociological factors that are at work in our society in influencing people’s attitudes and behavior.
This is a very big subject, and so this evening let me facilitate our discussions by a commentary on the overriding importance of next year’s general elections. I do this for two reasons.
Firstly, if parliamentary democracy is to genuinely mean government of the people by the people and for the people, then clearly its foundation has to be the unfettered and unimpeded exercise by the people of their constitutional right to freely choose through independently and impartially organized general elections their representatives to Parliament. This is crucially important because as we are reminded by the United Nations Universal Declaration of Human Rights it is the freely expressed collective will of the people that legitimizes the authority of Parliament to enact laws for the good governance of the state, and of the political government drawn from the Members of Parliament to govern the country in accordance with the liberal democratic principle of majority rule.
The second reason is that the conduct of general elections in a free, fair and honest manner brings into play the other two essential components of an effective and enduring system of liberal democracy. These are the principles of constitutionalism and the rule of law. Constitutionalism and the rule of law are the sentinels of liberal democracy. Without them, all we can look forward to is what has been described as an illiberal democracy.
Constitutionalism means in this context that government and state authorities must play by the rules as set out in the Constitution and by those that are meticulously observed as constitutional conventions in parliamentary democracies.
Rule of law means that every action by the state or the government must be founded in law; that the law must apply equally to everyone without particular favour to any persons or section of society; and that in applying the law all public authorities must always act in good faith, for the public good, and with an abiding respect for the basic rights, fundamental freedoms and legitimate expectations of every individual person.
And the courts being the guardian of constitutionalism, the rule of law and human rights, it is absolutely indispensable that we should have an independent and impartial judiciary, unlimited in its jurisdiction and accessible without hindrance to ordinary citizens who seek justice from the violation of their constitutional rights. But more than that, we need to ensure that we have judges who are secure in their tenure of employment, so that they can be fearless in upholding the law and in delivering justice to everyone.
TIME-TABLE FOR 2014 GENERAL ELECTIONS
Let us now turn to the Constitution. The Government, to its credit, has set out under Article 170 a specific time-frame for the general elections.
-Parliamentary elections are to be held no later than 30 September 2014.
-60 days before actual polling day, the President is to announce the specific date for polling.
-44 days before polling day, the President will issue the writ for the general elections.
-Nomination for candidates is then to follow in the next 14 days and the last day for nomination being the 30th day before polling day.
-This means that there will be 29 clear days before actual polling day.
Now, for us as freedom-loving and law-abiding citizens who want to see that there is a genuine return to constitutional democracy, there are certain aspects we need to think about carefully.
Firstly, voting is to take place throughout Fiji in a single day. Before, voting was spread out over one week. The question is: will a one-day voting be realistic, sufficient and fair to enable every voter to exercise his or her right to vote?
Secondly, Government has also announced an intention to decentralize the counting of votes to the various polling centres. A potential problem here is that political parties may not have the resources to be adequately represented in all counting centres to verify and monitor ballot papers and the counting. How then can we ensure the integrity of vote counting and, therefore, the honest and credible outcome of the elections as a whole? In this context, a relevant question is: should we not encourage the Government to invite international observers for the elections? And would there be merit in the USP as an academic and research institution undertaking a comprehensive survey and analysis of the 2014 general elections similar to what it did in the 1999 General Elections. It will be most interesting, for example, to establish whether there is a correlation between the results of comprehensive exit polls and the official results of vote counting.
Thirdly, there is the constitutional convention of the caretaker administration. On the day the President issues the writ for the general elections, that is 44 days before polling day, the Government becomes a caretaker administration. This is essentially a holding operation. Generally, the administration is not to initiate new policy measures or make unbudgeted commitments. The rationale is that this is to ensure fairness and a level playing field for all competing political parties, and that incumbency is not to be used for undue political advantage. The question is: how can we ensure that this aspect of constitutionalism is fully respected and complied with?
The judgment and general comments by His Honour Justice Gates in the High Court case of Koroi v Commissioner for Inland Revenue  FJHC 138 are illuminating and instructive in enlightening us on what a caretaker administration can or cannot lawfully do.
As to the crucial importance of the independent and impartial administration of the whole elections process, Article 170  of the new Constitution simply states that until such time when the Electoral Commission or a Supervisor of Elections is appointed under the Constitution, their functions shall be performed by the Permanent Secretary responsible for elections.
In South Africa, the Constitution specifically provides [under article 181(1)] that the Independent Electoral Commission must be
“---independent, and subject only to the Constitution and the law--- and must be impartial and must exercise [its] powers and perform [its] duties without fear, favour or prejudice.”
POLITICAL RIGHTS OF CITIZENS
Free elections in a democracy is essentially about the right of adult citizens to participate without hindrance in forming and joining political parties, in standing as candidates, in publicly campaigning and canvassing for voter support, and to cast one’s vote, and all these without intimidation or other undue influence.
What then does the Constitution say about the political rights of citizens?
Article 23  states unequivocally:
“Every citizen has the right to free, fair and regular elections---.”
Article 23  then states:
“Every citizen has the freedom to make political choices, and the right –
(a) to form or join a political party;
(b) to participate in the activities of, or recruit members for, a political party; and
(c) to campaign for a political party, candidate or cause.”
This Article is a new addition to the Bill of Rights. It was never provided for in the 1997 Constitution. Government should be commended for this inclusion in the Constitution.
Article 17  states:
“Every person has the right to freedom of speech, expression, ---and publication, which includes---
(b) freedom of the press, including print, electronic and other media; and
(d) academic freedom and freedom of scientific research.”
Article 18  states:
“Every person has the right, peaceably and unarmed, to assemble, demonstrate, picket and to present petitions.”
Article 19  states:
“Every person has the right to freedom of association.”
All these are splendid positive statements of rights. But then consider the following limitations:
 Under each of these freedom articles, that is, Articles 17, 18 and 19, there is an accompanying limitation sub-provision. For example, under Article 17 on freedom of speech, expression, publication, the press and the media, the limitation sub-provision states:
“(3) To the extent that it is necessary, a law may limit, or may authorize the limitation of, the rights and freedoms [in Article  above] in the interests of-
(a)National security, public safety, public order,---or the orderly conduction of elections.”
(h)Making provisions for the enforcement of media standards and providing for the regulation, registration and conduct of media organisations.”
In fairness to Government, the limitation in (3) (a) above was also present in the 1997 Constitution Bill of Rights. However, in addition to new limitations such as that in (3) (h) above, what has been most significant is the exclusion from this new Constitution of the qualification clause in the 1997 Constitution to this limitation sub-provision. This qualification clause in the 1997 Constitution which has been excluded from the new Constitution read:
“---but only to the extent that the limitation is reasonable and justifiable in a free and democratic society.”
This exclusion is very significant because this qualification on the limitation provision sets a threshold to assist the courts in determining the reasonableness or otherwise of the application of the limitation provision in particular circumstances.
Consider, for example, this constitutional challenge case in the Commonwealth country of Zambia where a group of Zambian citizens sought court protection for what they alleged was state interference in the free exercise by them of their political rights under their country’s Constitution.
Mulundika and Others v The People  2 LRC 175
The appellants were arrested while taking part in a public gathering for which a permit had not been issued under section 5  of the Public Order Act. This legislation provided that a permit to convene an assembly or a public meeting or to form a procession in a public place would be issued only if the regulating officer was satisfied that the proposed gathering was unlikely to cause or lead to a breach of the peace.
The appellants challenged the constitutionality of this provision on the ground that it contravened articles 20 and 21 of the Constitution which guaranteed freedom of expression and freedom of assembly respectively.
The Supreme Court, by a majority, held that the right to organize and participate in public gatherings was inherent in the freedom to express and to receive ideas and information without interference, and that the requirements of prior permission, with the possibility that such permission might be refused on improper or arbitrary grounds or even unknown grounds, was an obvious hindrance to those freedoms.
The Court also held that the absence of adequate guidelines in section 5  of the Public Order Act, especially since it gave unfettered and uncontrolled subjective discretion to a regulating officer, rendered it seriously flawed and prima facie constitutionally objectionable.
The Court concluded that the cumulative effect of section 5  of the Public Order Act was that it was not reasonably justifiable in a democratic society, contravened articles 20 and 21 of the Constitution and was therefore null and void for unconstitutionality.
Here in Fiji, the question that arises is: given that the new Constitution, as Fiji’s supreme law, has come into effect from 7th September 2013 and notwithstanding that the Public Order [Amendment] Decree 2012 remains in force until Parliament is convened following the general elections in September 2014, would any individual person or persons adversely affected by , or with sufficient interests in, an action by a public authority that interferes with rights guaranteed under articles 17, 18, 19, and 23 be able to seek redress from the courts? This is especially during this critical period between now and the holding of general elections in September 2014.
We shall need to seek clarification on this from Government. But it would appear that the answer is a clear no.
This is firstly because the Constitution itself states [in Article 16 (3)] that the right to executive and administrative justice under Article 16 (1) of the Constitution---
“---shall only apply to executive and administrative actions taken after the date of the first sitting of the first Parliament elected under this Constitution.”
And secondly, the Constitution imposes a limitation on the jurisdiction of the courts under Articles 173 and 174. Article 173 (4) states:
“---no court or tribunal shall have jurisdiction to accept, hear, or determine any action which seeks or purports to challenge or question---the validity or legality or constitutionality of any law made or as may be made between 5 December 2006 and the first sitting of the first Parliament under this Constitution.”
In light of these ouster stipulations on the jurisdiction of the courts, how then can we the citizens of Fiji safeguard the integrity of the elections process between now and the completion of elections in September 2014, including the unhindered and unfettered exercise by registered voters of their political rights and fundamental freedoms under the new Constitution?
No country in the world has a constitution which has the unanimous approval or endorsement of its people. The same can be said of the Constitution which His Excellency the President promulgated on 7th September, 2013. But as citizens of Fiji we owe it to the Government to commend it for the constructive steps it has taken to return our country to constitutional democracy.
Through this Constitution the Government has affirmed its commitment to returning Fiji to the rule of law and parliamentary democracy.
A specific time table has been set for the general elections in September 2014.
By their free and deliberative participation in the elections, it is the people who will confer legitimacy on the Constitution and through that the legality of the government to be appointed under the Constitution.
The one question that challenges us today as citizens is: what can we do to ensure the integrity of the whole elections process.
Let us encourage the Government to invite international observers.
Political parties must take it upon themselves to be present at all polling stations and vote counting centres.
I have suggested that the USP, with the support of donors, may wish to consider conducting a research project on the elections.
And for you the students, a very good masters or doctoral research thesis can be on the comparative efficacy, in terms of the quality services to the people, of the single national constituency and open party list approach we are adopting for the 2014 elections, and alternative arrangements such as, for example, the mixed single member constituencies and a closed party list national constituency system which new Zealand uses, so that people at the community level can continue to have direct contacts and connections with their elected representative who actually resides with them in the constituency.
In the ultimate, I believe that the most prudent, pragmatic and helpful action that we, as citizens of Fiji, can collectively take is to encourage the Government to show its commitment to constitutionalism and the rule of law as embodied in its Constitution, either by repealing the Public Order [Amendment] Decree 2012, or by subjecting itself to the highest degree of self-restraint, probity and goodwill in applying its provisions.
AND Kotobalavu takes on Archbishop Chong's neo-Marxist-oriented patron-client conceptual interpretation of Fiji’s recent political history:
You carried a report [F/S Sept. 14] on the keynote address by Archbishop Peter Loy Chong at the WACC symposium on democracy.
I have read the full text of his presentation. He was obviously drawing from his doctoral thesis on the coups in Fiji and it was plain to see his neo-Marxist-oriented patron-client conceptual interpretation of Fiji’s recent political history.
I commend him for his sincere commitment to peace, unity and democracy. I have to say though that it was most disappointing to note his sweeping subjective judgmental statement in which he referred to “a corrupted and racist Qarase government”.
It is unworthy of a learned scholar to make this kind of loaded statement without authoritative evidence.
Mr Qarase’s government after the 2006 general elections was a multi-party government, the first in Fiji’s history, and it was in full conformity with the 1997 Constitution, Fiji’s supreme law, and with the liberal democratic principle of majority rule.
The present government has maintained the separate i-Taukei government scholarship scheme and it has gone a step further than the Qarase-led muli-party government by enshrining in the new Constitution’s Bill of Rights the rights of the i-Taukei to their customary land and traditional fisheries. Dare he say that this government is racist?
The Ministry of i-Taukei Affairs has in its archives files containing more than three hundred petitions from various landowning mataqalis lamenting what they felt deep in their hearts were unconscionable dealings involving non-i-Taukei through which they were deprived of their ancestral land.
In proposing the establishment of a dedicated land claims tribunal, all that the Qarase government was trying to do was to provide an easily-accessible avenue and specialist court above the Native Lands Commission where these aggrieved mataqalis could be given the opportunity to be heard.
In the common law, which alongside statutes is a source of law in Fiji, the right of an adversely affected person to be heard is a fundamental principle of basic justice.
And if Dr Chong has evidence of corruption by the Qarase government it is the duty of every citizen to submit this to FICAC.
It is very sad to form the impression, quite unfairly I admit, that he has fallen into that siege mentality and me-the-victim mindset which categorizes as racist and corrupt anything that is done, within the law and with salutary intentions as public policy, to uplift the economic and social living conditions and opportunities of the i-Taukei in order to bring them closer to the standard and quality of life that other communities enjoy.
I make the above secular observations with the deepest of respect to Dr Chong both as the head of Fiji’s Roman Catholic community and as a scholar.
9 Pasvali Road
15 September, 2013