The Ghai Draft Constitution's Voting Provisions:
Fijileaks publishes a note by JILL COTTRELL GHAI on the rules of voting in the Commission's Draft Constitution. It explains the reasons why the Commission recommended these rules, and how they might operate. Fijileaks hope they might assist in the discussions among Fijians on their future constitution, and to members of the Constituent Assembly. Jill's note is adapted and expanded from the Explanatory Report of the Commission
 By JILL COTTRELL GHAI The Decree setting up the Commission required the Draft Constitution to have certain features: one person, one vote, one value; the elimination of ethnic voting; proportional representation; a voting age of 18. |  Public seminar at USP, Fiji, on Electoral Reform |
The Commission invited a distinguished Norwegian electoral expert, Dr Kåre Vollan, to visit Fiji. He held long discussions with the Commission, met political party leaders and local experts, and participated in a public forum. His input was very valuable in formulating the Commission’s decisions on the topic.The Commission also studied the People’s Charter, and writing on the elections in Fiji in the past, as well as on electoral systems generally. It approached its task, within the binding framework of the principles above, by identifying the main objectives an electoral system for Fiji should achieve:
· a representative Parliament
· accountability of the elected members
· stable governments
· simplicity for the voters – and ideally for the election administration
· parties that appeal across communities
· a political system that encourages dialogue and compromise.
Size of Parliament
Before looking at the system of voting, it should be noted that the Commission recommends a Parliament of 71 members. Some have felt this to be too large. The Commission’s reasons were:
· There are many jobs that need to be done in any legislature; it should not be too small
· The larger the body the easier it is to have a diversity of membership (something needed to satisfy the principles in the Decree)
· Fiji is not a compact country; if communications were better the number of MPs could be smaller.
Proportional representation – which system?
A system of proportional representation (PR) is one that guarantees that the make-up of the body elected reflects the size of the support for each party in the country. If one-third of the people vote for a particular party, it gets one-third of the seats in the body elected. If half the people vote for a party, it gets half the seats. Proportional representation is found in many countries in the world (about 36% in fact). An invariable feature of PR is that it uses multi-member constituencies. These may perhaps have just 7 or 8 members from the constituency, or they may even treat the whole country as a single constituency, or be somewhere in between.
Like the Council for Building Better Fiji in the People’s Charter process, the Commission rejected the system of PR called “single transferable vote”: this involves the voter in ranking the candidates, voting for up to as many candidates as there are seats for the constituency. The Commission felt that this was too similar, as far as the voters were concerned, to the old Alternative Vote system, and also most people would not understand how their votes were translated into seats. It would not satisfy the simplicity requirement.
The other main method of achieving PR is by using lists. Each party put forward a list of its candidates for the constituency. The names on that list should be in order of preference as far as the party is concerned. So if a party submits a list of 20 names for a constituency with 20 seats, and it gets 25% of the seats it would win 5 seat and the top 5 names on its list would be the individuals to hold the seats. The voters would be able to see the full list in advance.
The Commission decided to adopt a list system; this is also what the People’s Charter recommended. The Commission rejected the suggestion of a multi-member proportional system (MMP) – similar to that used in New Zealand. This would have involved a system of single-member constituencies and also other members drawn from party lists. The list members would be allocated between parties so that overall Parliament reflected the way people had voted for the parties. It has the advantage that people can feel a connection with an individual MP, while also it corrects the often disproportionate results of a single member constituency system. The Commission rejected it because it is not simple to understand, and because there was the risk that at the level of the individual constituency it would probably perpetuate ethnic voting. It would also have involved drawing new boundaries, which is time consuming, and politically highly sensitive.
Non-party candidates
But this is not the only decision to be made. The Commission also decided that candidates would not have to be party people: an independent candidate would be able to stand, giving individuals who have no party allegiance the chance, and giving voters an alternative to voting for a party. An independent would be like a party list with a single name on it.
One constituency or many?
Then the Commission had to decide whether to divide the country, or to treat the whole country as a single constituency. It decided, like the People’s Charter recommendations, to use divisions with which people are already familiar: the 4 Divisions, namely Central, Northern, Western and Eastern. It rejected the idea of merging Eastern into Northern for this purpose, in order to ensure fair representation for the scattered islands of Eastern. This decision would mean the number of members for the bigger Divisions would be quite large.
On the other hand, to make the whole country a single constituency (as in the Netherlands and Israel) would have removed any sense of connection between voter and MP. And it would have been particularly hard to ensure any true sense of being represented for people in places like Rotuma or Lau.
To make the constituencies smaller (perhaps 8-10 members for each) would have involved a boundary drawing exercise before the country could hold elections.
The actual voting
The next issue is: how would the voters cast their vote, and what would the ballot paper look like? In some countries with PR systems the voter simply votes for a party and its list, without any ability to change the make-up of the list or the order in which the names appear on the lists. This is called a “closed list” system. The ballot paper might have just party names and symbols.
In some PR systems the voters may affect the content of the list (an open list system). This may happen in several ways:
· the voter may cast a vote for the party and then may strike out certain names from the list, or indicate a preference for the order of names on the list
· the voter does not actually vote for a party but only for individual names, up to as many as there are seats; those names need not all be from the same party (an unusual system)
· the voter in some countries votes only for a single person; this is a vote for that person’s party, and the votes determine the order in which name are taken from the party’s list.
The Commission gave very great thought to this matter. It considered very seriously the suggestion put forward by Father David Arms, a member of the Charter process. He favoured a system under which each voter voted for one person only (the last possibility in the list above). One way of doing this would be for the individual to mark a single name on a ballot paper that included every candidate of every party contesting the constituency. Such a system has been adopted in a few countries.
The Commission rejected this idea. A ballot paper that listed every candidate for every party would be enormous. A Division might have as many as 24 seats. If 10 parties contested this would mean a ballot paper with 240 names. It would be very complex, and hard for voters to find the name they wanted to vote for.
The same objection about unwieldy ballot papers and a cumbersome process would apply to the second possibility (which it seems the Attorney-General has expressed support for).
An alternative method for indicating a single vote would involve the voter simply filling in the number of the preferred candidate on a simple sheet. The voter would know the number of the preferred candidate either because they were well prepared in advance or because at the polling station there was a list of all the candidates, each with a number. This would also be complicated. Most voters would want to check the number on the list in the polling station before writing it onto the ballot paper. This would cause anxiety and take time.
More important than complexity was the fact that research shows that all open list systems tend to encourage voting on ethnic lines. The tendency to vote for “our” person would be greatest in a “one-vote” system.
For this reason the Commission feared that open list systems would not satisfy the Decree requirement of non-ethnic voting, nor would it satisfy the Commission itself, which believed that the system should indeed discourage ethnic voting of this sort.
Summarising the proposal in the Draft (Chapter 8)
· The country is divided into 4 electoral districts using the existing divisions (Central, Eastern, Western and Northern); 60 of the 71 seats in the House of Representatives are divided between the districts according to population. The remaining 11 seats are “compensatory” seats, used to ensure that each party gets a share of seats that is in proportion to the votes that it received nationally.
· According to population (with the exception of the Eastern Division), the seats are divided as follows:
o 24 for Central
o 22 for Western
o 9 for Northern
o 5 for Eastern.
· Eastern is given 5 seats, not the 3 that its population would suggest, because it is made up of smaller scattered islands. With 5 seats it will be easier for the people in Eastern to have proper contact with their MPs. This won’t affect how the votes for parties are reflected in the number of seats in Parliament because the 11 compensatory seats will balance things out.
· Any party that wishes to put forward candidates in a constituency must produce a list of its candidates in order of preference.
· To ensure that a reasonable number of women are elected, the Draft requires that all the party lists include women. To begin with, the Draft requires women to be included in the lists in a way that will ensure that nearly one third of the seats are given to women. After the 2nd elections the provisions in the Draft mean that women will get very nearly half the seats in Parliament.
· An individual may stand as an independent, not linked to a party.
· Each voter has ONE vote in the Division: for a party, or for an independent member
· When the votes are counted, the seats are allocated according to how many votes have been won in the constituency: a party that wins 20% (one-fifth) of the votes gets one-fifth of the seats etc. In this calculation, the Electoral Commission will take into account independents as well. It will work out how many votes an independent candidate needs to win a seat and will adjust the number of seats parties get accordingly. The calculation is slightly more complicated than one might expect because of the risk that parties would be entitled to fractions of members. For example, a party winning 15% of the votes in a constituency with 23 seats would be entitled to 3.45 seats. There are various ways of dealing with this. The Draft Constitution just requires the Election Commission to make regulations to provide for it to use one of the internationally accepted ways of doing so.
· What about the remaining 11 seats? The Electoral Commission will calculate the overall national support for each party, and the 11 compensatory seats will be distributed among the parties to ensure that the final make-up of Parliament reflects the national support of each parties. In particular this benefits small parties whose support is spread across Divisions.
· A system of proportional representation tends to produce a large number of small parties. This can destabilize government. So, to limit the number of parties in Parliament no party will get any of the extra 11 seats unless it has at least 1% of the total votes across the country.
How does this relate to the objectives identified by the Government in the Decree and by the Commission itself? In summary:
· It is easy for the voters – they need to decide which party (or independent candidate) they support
· It is not complex for the body that administers elections
· It encourages political parties to appeal to all the voters by including on their lists a wide range of types of candidates; research shows that list PR system produces legislatures that are more representative of the nation as a whole than other systems
· It makes it possible to favour the small islands a bit without distorting the party representativeness of the parliament
· Although the Divisions will be large, it should still be possible for the public to identify their own MPs; parties could allocate members to particular parts of the Divisions; voters would be able to reject them at the next election because they would be able to so see which were taking their constituency (Division) responsibilities seriously, which is important for accountability of MPs
· It is far easier to have gender quotas in a list system (for the method used see above).
There are some other consequences. It puts a lot of power in the hands of the party leader who make up the lists. This ought to be moderated by having a democratic party system (which the Draft does require, see Article 58). And the Draft Constitution does provide that non-party people could also stand.
This system makes it easier for small parties to get seats in Parliament than the systems Fiji has used in the past. One consequence may be that no party gets more than half of the seats, and that parties will have to work together to form a government– a coalition government. This has advantages: government should reflect a wide range of citizens’ concerns. There may also be disadvantages, including:
· It is more difficult to make decisions if parties with different views must agree.
· A party may be able to form government only with the support of some small and extremist party, which may negotiate to have some of its own unpopular ideas adopted. But, the system may have the opposite effect. If the small party really wants to be part of the government if may have to give up its extremist views.
· The coalition of parties that forms the government may not be very stable and the government may not last long. Again this is not inevitable. The draft Constitution has some proposals to help deal with these risks in the chapter on Parliament. And the politicians will work out how to make coalitions work. The most important thing is for the parties to come to a clear agreement on their shared policies when they form a government.
The gender issue
Few countries have an equitable distribution of seats in terms of gender. Fiji has slightly under 50% females in its population but has had well below 50% women MPs. A few countries have achieved over 50%, notably Rwanda which now has 56%-- this is achieved by constitutional provisions and ruling party commitment (Rwanda approaches a one-party state). Sweden has over 48% women in Parliament (achieved by party commitment to gender-zipped lists).
The Commission decided that it was time Fiji was required to take gender equality seriously. However, it also recognised that it may take some time for women to become active in politics and for parties to organise to include women. It is undesirable for parties to resort to filling seats with wives and daughters of leaders because there are no other women coming forward.
Therefore the Draft Constitution says that for the first election every party list must have the following (Schedule 6 section 6): out of the first two names one must be a woman, out of the first 5 names 2 must be women, out of the first 8, 3 must be women and thereafter out of any 3 names 1 must be a woman. This does not guarantee that one third of the Parliament would be women. If a party one only one seat that would probably be a man; if it won 7 it might be that only 2 were women. But it would ensure that any party with a significant number of seats in a constituency would have some women. Imagine that in Central Division seat were won as follows:
Party A 9 seats
Party B 5 seats
Party C 3 seats
Party D 3 seats
Parties E and F 1 seat each.
If every party began its list with a man, and never gave more places on the list to women than required by the Constitution, there would be 7 women out of the 22 (just under one-third).
For later elections the parties would have to alternate men and women. A list might be man-woman-man-woman etc. or woman-man-woman-man etc. A party that got only one seat might have only a man; a party that won 9 seats might well have 5 men and 4 women. But it would guarantee a good number of women. As women gained experience and influence lists might begin with a woman’s name, so a party with 9 members from a list would have 5 woman and 4 men.
If the votes in the second election resulted in a similar distribution of seat between parties as in the example above for Central Division, and every party began its list with a man, the gender distribution would be 8 women to 14 men – over one-third. This, like the other, is the worst case scenario; if each party had an even number of seats there would be 11 women or 50%.
20 February 2013
