#header-inner img {margin: 0 auto !important; #header-inner {text-align: Center ;} Fiji Coupfourpointfive: Narsey: Constitutional traps and FLP/SDL relations

Tuesday, March 20, 2012

Narsey: Constitutional traps and FLP/SDL relations

Some murmurs about the names of the last two people to join the Constitution Commission but no formal announcement yet. Odds are one will be a key regime supporter, well-known to us. On that note, we reiterate that the Constitution consultation process initiated by the regime to replace the Constitution it abrogated in 2009, cannot be supported. Any changes to the lawful 1997 Constitution should be followed under its own provisions by an elected Parliament. So while we endeavour to keep people in the debate, it is not recognition of the 2006 coup makers or their illegitimate process.

In line with our commitment to keep people informed, we republish here an article written in 2001 by Dr Wadan Narsey on the Constitution that still has relevance. We also re-print his article on rival political leaders Mahendra Chaudhry and Laisenia Qarase. Both of these articles have been published on Dr Narsey's new blog site at: http://narseyonfiji.wordpress.com/

Constitutional traps awaiting elections deal with them now (Fiji Times August 31, 2001)
This week, a frustrated nation votes yet again-spending long hours, in interminable lines, under hot sun and in miserable rain.  Taxpayers, parties, candidates and supporters spending millions of dollars.

Investors and the nation hope for a stable parliament and government, so that the economy can move again.

But two constitutional traps await the nation - one in the selection of the Prime Minister (and his Government), and one in the selection of members of Senate.

Because of unclear, inadequate and inconsistent wording of the Constitution.

Can these be sorted out, before the election results start coming out?  Before the political squabbles, legal battles and more instability?

Selection of Prime Minister and Government
The Constitution (Section 98) states that the President “acting in his or her own judgement appoints the Prime Minister” who “in his opinion” has the support of the House.
Section 96(2) says that the Constitution “prescribes the circumstances in which the President may act in his or her own judgement”.
Section 97 states that “Governments must have the confidence of the House of Representatives”.
This means that the Prime Minister selected, and his Government, must have the majority of the votes in the House - at least 36 out of the 71 MPs.
Well may you ask, how can there be any disagreement about this?  Probably not, if any one Party were to obtain 36 or more seats.
But what if no one Party gets outright majority, as may be the case in this election?
What if different coalitions of parties could theoretically form the majority in the House?

Nothing in the Constitution says that the President should consult the political parties and find out who they support for Prime Minister.
What if the smaller political leaders give confusing public and private signals to the President, torn between Ministerial lollies offered by potential Prime Ministers and voter pressure?
What if wrong advice is given to the President by unknown “advisers”, whose recent track record would suggest a dismaying willingness to go off the Constitutional track?
What if the President,  on the basis of signals and advice given to him,  uses his “personal opinion and judgement” and selects a Prime Minister (and Government) which is found later, not to have the majority support in the House?
There will be a vote of “no-confidence” in the House and the Government is defeated.

What then?  Unfortunately, the Constitution is not clear on the next steps.
Section 107 states that if a Government loses a vote of no-confidence “AND the Prime Minister considers that there is another person capable of forming a government that has the support of the majority of the House”, then he “must immediately advise the President” of the name of that alternative Prime Minister.
Well, well.  What if the first Prime Minister claims that he does not consider that there is an alternative Prime Minister (remember statements made recently by some political leaders)?   And so he gives no advice to the President about the alternative Prime Minister.
What does the Constitution require the President to do next?
Section 108 states that if a Prime Minister loses a vote of no-confidence  “AND advises a dissolution of the House of Representative”, then the President may go about selecting an alternative Prime Minister.
But what if the first Prime Minister does not advise a dissolution of the House either?

Nothing in the Constitution explicitly states that the President must dismiss a Prime Minister if he loses a vote of no-confidence.
What the Constitution does say (Section 109) is that “the President may not dismiss a Prime Minister unless the Government fails to get or loses the confidence of the House of Representatives”.   But even that was not observed last year, was it?
Do we have stalemate, with the Minority Government continuing?  With Machiavellian powerbrokers making use of constitutional uncertainties?  And yet another costly election?
So what could help in this situation?
Clearly, the first Prime Minister selected by the President must have the support of the majority in the House.  How can the President be assisted in this?
One solution is this.  Immediately after the election results are known, political leaders and parties must promptly write to the President, supported by signatures of all their elected MPs, their preference for Prime Minister and political party to lead Government.
And these written statements must be concurrently released to the media.
So that there are no confusing signals sent to the President.  And it will also ensure that any Machiavellian back-tracking by political parties and leaders behind the scenes will become fully transparent to the voting public.

Selection of Senate
Section 64 of the Constitution sets out how the 32 Senators are to be appointed.
There are no problems about the 14 to be nominated by the Bose Levu Vakaturaga (Section 64(1)a) or the 1 to be nominated by the Council of Rotuma (Section 64(1)d).
But there are serious problems about the 9 to be nominated by the Prime Minister and the 8 to be nominated by the Leader of the Opposition (Section 64 (1) b and c)
The Constitution says nothing about how the Prime Minister is to be guided in making his 9 nominations.
But common sense would suggest that the Prime Ministers’ nominees would represent all the parties who have agreed to be part of the Government (whether eligible to be in Cabinet or not, under section 99 of the Constitution).
But Section 64(2) of the Constitution makes the extra-ordinary and obviously inconsistent statement that the 8 nominations by the Leader of the Opposition, must come from “the leaders of each of the political parties entitled to be invited to participate in the Cabinet”.

In other words, parties eligible to be in Cabinet (if they do join Government) will nominate both the Prime Minister’s nominees to Senate, and the nominees of the Leader of the Opposition- 17 altogether. More even than the BLV nominees to Senate.
Surely this was not the intention of the Constitution framers, if Senate was to provide some checks and balances to the House of Representatives.
Section 64(2) probably should have read that the nominees of the Leader of the Opposition should come from “the leaders of each of the political parties not entitled to be invited to participate in the Cabinet”.
But,  even this is inadequate, given the current realities ofFiji’s strange political alliances.
In the 1999 Peoples’ Coalition Government, there were parties in Government, who were not entitled to be in Cabinet (VLV and PANU).  And there were parties in Opposition who were entitled to be in Cabinet (SVT).
The same may happen again, following the 2001 elections.
One sensible rule could be that the Prime Minister’s 9 nominees will come from all the parties that agree to form government, in proportion.
And the 8 nominees from the Leader of the Opposition will come from the political parties and independents who sit in Opposition, in proportion.
Should the political leaders and parties agree on this before the election results come out? Before the political squabbles.  Before the legal challenges.  Before more political instability frightens off investors yet again..

Judicial Review Before Political Crisis

I have written about both these constitutional uncertainties previously (see my Fiji Times articles of 17 June 1999 (“Clause 2 stalls Senate decision”) and 9 July 1999 (“Moving to the same beat”). Some of the events warned about have unfortunately come to pass.
As the recent CloseUp programme indicated, our political leaders show little inclination to co-operate with each other with good will and integrity, despite the multi-party government requirement of the 1997 Constitution.
Our lawyers have not shown any urgency in addressing these fundamental weaknesses in our constitution (legal challenges do generate substantial legal fees).

Bite the bullet, Fiji Labour Party (Fiji Times September 10, 2001)
The kind of future that Fiji will have over the next five years (and possibly the next decade or so), will be decided this coming week.
The two dominant political leaders (Qarase and Chaudhry) have previously taken antagonistic stances.
While both have to consider the “arranged marriage” required by the Constitution, the Constitution is quite silent on how the marriage is arranged.
Most commentators have pointed out the advantages for the nation, were there to be a Grand Coalition, running the government for the next five years.
But if the parties fail to show trust, goodwill and a genuine conciliatory desire to co-operate in government, then the whole process may break down.

The election results have made the FLP the undoubted voice for the Indo-Fijian community, and Qarase for the Fijians.
Can FLP’s leadership show more understanding of the pressures that are being faced by Qarase, both as the clear leader of the indigenous Fijians, and as the Prime Minister of the incoming Government?
Can SDL be more understanding of the difficulties faced by the moderates in the FLP camp who are supportive of the FLP joining his government?
Agreement to Participate
At some stage, Qarase will be asked by the President to become Prime Minister.  He will then invite FLP to join him in Government, as the Constitution requires.
Qarase is not required by the Consitution to list the Cabinet positions being offered. In all likelihood, Qarase will simply ask for a yes or no answer.
And FLP will have to say yes or no.

It would be unwise of the FLP to attach any pre-conditions. FLP has already established the unfortunate precedence that pre-conditions by the invited party may be interpreted as a rejection of the offer (as the FLP did with the SVT after the 1999 elections).
It may help the FLP leadership to be considerate of the problems that Qarase faces and will face, were FLP to join his government.
Share of Cabinet Positions
There are only two parties entitled to be in Cabinet- SDL and FLP.  No other party has a minimum of 8 seats, and no post-Cabinet coalition will entitle others to a seat in Cabinet.
The split between SDL and FLP will be roughly a half, with the SDL obtaining a 2 seat advantage (e.g. with 18 cabinet positions, SDL will have 10 and FLP have 8).
If Qarase gives any Cabinet positions to the other minor parties (to ensure that he has the majority of votes in Parliament), they come out of his share in Cabinet (not FLP’s).

Therefore, almost a half of the Cabinet posts will not be available to Qarase and he will not be able to give Cabinet representation to all the Fijian provinces.
And remember that Qarase was extremely careful to balance provincial representation in the Interim Administration Cabinet (no doubt important in his success in the elections)
As important. there will be at least eight SDL Members of Parliament, who will be denied posts of Cabinet Ministers if FLP joins Qarase’s government.
Qarase is therefore already facing strong pressure from his supporters to discourage FLP participation in Cabinet.
And Qarase must be worried about decision-making in Cabinet.

Within Fijian parties and communities, broad “consensus” plays a big part.  The larger more populous provinces pay great attention to the voices of the smaller provinces with much smaller populations.  It is not necessarily a numbers game and voting.
With the non-Fijian political parties, the numbers game is more important.
Within Cabinet, the balance between SDL and FLP will depend on the continued support by the minor partners, of SDL positions on issues.
Will the FLP presence in Cabinet reduce decision-making to confrontational, aggressive arguments, with votes to decide?
Could this de-stabilise the alignments of cabinet ministers with their parties?
What would happen if the Prime Minister over-rides collective decision making in Cabinet?

The Pluses for Qarase
Of course, there could also be significant advantages for Qarase were the FLP to join.
The FLP does have some MPs of ministerial material, who could not only address some of the thorny problem areas (such as education), but also put pressure on the other SDL Ministers to perform.
Qarase’s government may also find it easier to tackle a number of vital economic challenges facingFiji, were it to have the FLP in Government.
Reform of the sugar industry would be so much easier if the FLP could facilitate the full co-operation of the farmers, cane cutters, the mill workers and their unions.
Fiji’s corporatisation and privatisation programmes could be more sensibly managed with less social and economic fall-out, were government and unions to reach agreement on the extent, pace and timing of rationalisation.
And probably the most important advantage would be that having the two major parties co-operating in government would give the most powerful signal to potential investors that the economy would not be facing fewer disruptions through political instability or industrial actions by unions.

And if investment took off  in all the opportunities in tourism, agriculture, forestry, mining, marine resources, there is little doubt that theFijieconomy would grow by more than 5 percent per year for the next ten years.
Such rates of growth would increase national income, government revenues and expenditure dramatically.
The country could well afford to provide all the funds required for the two major policy areas, which are the pre-occupation of the SDL and FLP: the Fijian Blueprint, and the resettlement of the sugar cane farmers displaced by expiring leases.
Both the SDL and the country would therefore also gain by conciliatory encouragement of the FLP into Government.
Should FLP Accept?

The Labour camp is in intense discussions on whether to accept Qarase’s invitation to be part of Government. The bulk of public opinion has been that FLP should accept.
It is pointed out that being in the Opposition will not enable the FLP to do anything particularly concrete or constructive for their supporters and the country as a whole.
As part of Government, the FLP would be able to work towards better resource allocation towards their Manifesto promises- whether for farmers, workers, or whatever interest group.
Whatever the ministries eventually offered by Qarase. seven or eight of their MPs will be able to perform extremely constructive roles as Ministers in the Fiji Government, with the possibility of establishing a good five year track record which could help them in the next elections.
(The FLP would do well to remember that to a politician there is no such thing as an unimportant ministry).

But while the more substantial MPs on the FLP side are in favour of joining Qarase’s government, there is also opposition.
Strangely enough, there are minor MPs on the FLP side who oppose FLP being part of government, because they personally will not become Ministers (the “dog in the manger” syndrome).
The FLP leader personally may be inclined towards being in Opposition.  He may be unwilling to compromise on the FLP Manifesto.
But not forming Government, what ground can there be for demanding full implementation of its manifesto?
And what part of the Manifesto will be achieved through being in the Opposition?
The FLP Leader may be unable to make any concessions to the SDL proposals for the Fijian Blueprint and other affirmative programmes.
However, should the FLP, as a partner in Government not give and take on some policies, in return for some of their own concerns being addressed?
And would not an FLP Government also have been addressing the same indigenous Fijian concerns under some other title?
Unfortunately, the Leader of the FLP may find it difficult to serve under a Prime Minister who he cannot control or dominate.
Even within his own party, Mr Chaudhry’s reputation is one of intolerance towards dissenting party members, even if they are the party heavyweights and even if their concerns may be legitimate.

As a Leader of the Opposition, he will be on full Ministerial salary and other perks (but little for his other MPs). There will be no pressure on him to deliver on any promises, while being totally free to criticise, locally and internationally.
FLP leaders, may, by wearing different hats, also disrupt the economy and society, with strikes and harvest boycotts. This was the trend followed by both the NFP and FLP for much of the last thirty years.
Wise Indo-Fijian leaders, like Jai Ram Reddy,  recognised that these antagonistic approaches toFijipolitics achieved little material good, for either the Indo-Fijian population or the country.
Reddy changed his approach towards the Fijian parties and their leadership, resulting in advantages which all can see (even if he paid the ultimate political penalty.)
Does the current leadership of the FLP have the humility and courage to accept being partners in a Qarase Government, in the interests of the Indo-Fijian community and the country?
Time will tell.
What about a judicial review of some of these constitutional uncertainties before the election results are determined and before political crises once more hits the nation?
Or will our judges be too busy, firing shots at each other, as currently?


Anonymous said...

Possible the last two members will be those looking to redeem themselves and be seen to helping the people after all

Anonymous said...

Narsey, i think you are in the wrong profession. You should be a journalist

Anonymous said...

@ Anon 10:20am.

Please read properly..at least above the line

Too long said...

Too long this article re..make my head sore just reading it..

Anonymous said...

Can't read such long articles -give me an headache?

Anonymous said...

Everything Warden has written i have also addressed with regards to the multiParty Cabiney etc-pity people still think the last Constitution was such agreat document & had merits-it was usless piece of document had Racists overtones and implied that those who lived in Fiji and had a choice of choosing its Govt were stupid! Warden has has dissected several weaknesses which others tend to ignor!