Outcomes of the People's Constitutional Forum
The People's Constitutional Forum, made up of a diverse group of 45 leaders and thinkers from around Fiji, met in Lami from 20 – 22 March, 2013. The People's Forum was an open space for discussion, debate and negotiation on constitutional content. We come from Fiji's churches and religious groups, proposed political parties, trade unions, rural networks, universities, women's groups, human rights organizations, youth groups, LGBTQI groups, networks of persons with disability, the private sector, and people living with HIV. Members of the public also participated in our discussions through an open gallery and by interacting with the online live streaming of our discussions and debates.
We examined the 2012 Commission's draft Constitution, previous Fiji Constitutions and had a brief overview of the proposed State draft of 2013. We agreed on many points, but also respected the diverse opinions of this People's Forum. These are the outcomes of our discussions:
There was consensus that:
- The electoral system, and the community as a whole, should actively encourage and support women's representation in parliament. There was a strong view that this should be achieved by constitutional provisions implementing a closed, "zipped" list proportional representation (PR) system.
- There must be comprehensive civic education conducted throughout Fiji to ensure that all constituents understand how the electoral system works.
An overwhelming number of participants:
- Preferred a closed list PR system, because it forced constituents to focus on the policies of a party, rather than the personality of an individual candidate.
- Supported any electoral system that moved away from race-based voting. There was some concern that an open list PR system proposed under the Government Draft would lead to voting along race and gender lines, and a strong belief that this was less likely to occur with a closed list.
- Supported electoral divisions based on North, Central, East and West Divisions, as they felt that these "mapped onto" existing development structures and delivery mechanisms (which the old system had been at odds with).
Some participants expressed:
- Support for temporary, special measures to ensure youth representation in parliament.
- Concerns that the abolition of communal voting fractured traditional Fijian ways, whilst others argued that communal voting had never worked, because it didn't pass the democratic test (which was expressed as being three elections without a coup).
- Concerns that a list proportional representation system would create a disconnection between constituents and representatives, particularly for those people in rural areas. However, others were of the view that changes in local representation were a necessary sacrifice that had to be made to move away from race-based politics.
- The view that a positive outcome of a proportional representation system was that it encouraged political parties to appeal to a cross-section of society.
- Many people agreed that there are serious problems with local government: (i) discriminates against women, (ii) unelected and unaccountable, (iii) duplication of roles, (iv) failed to develop rural areas, and (v) excluded people like those living in informal settlements.
- Most people recognized that 'local government' was a broad term that included government bodies as well as traditional, religious and other community groups.
- Everyone agreed that there should be an elected, participatory and accountable local government that would be composed of urban and rural councils, and have powers necessary to promote local development.
- Some people suggested elections based on 'one person, one vote,' while others suggested a zipped closed list or quota system to ensure women's participation. There was another suggestion to have some councillors elected by specific groups including women, youth, those living in informal settlements and other marginalized groups.
- If local government is responsible to rural development, it would also have to ensure its delivery accounted for the diverse needs of many different people.
- Most people also agreed that elected local government should be able to raise its own funds as well as receive guaranteed contributions from the national government.
- Some people suggested an umbrella organization for all elected local government that had some role in holding national government to account similar to the National Peoples Assembly.
- For elected local government to succeed, there needed to be a civil education campaign so that councillors and their constituents understood their respective rights and responsibilities.
- If there was an elected local government, some disagreed on whether to implement it immediately or wait two to four years.
- If councils were based on existing provincial boundaries, people recognized that this might be a problem since this overlapped existing iTaukei institutions.
- There was also some disagreement on whether to (i) integrate all citizens into iTaukei systems, or (ii) create a single system of elected local government. Most agreed that existing iTaukei structures should continue to exist, but only as cultural institutions without any responsibilities for development.
With regard to the structure and work of Parliament:
- Many suggested there should be an upper and lower house of parliament.
- If there is an upper house, many suggested that upper house be elected; an other alternative is that upper house is made up of civil society members – and should be inclusive of minorities and other marginalized groups.
- Others suggested that only one elected house of parliament is needed, due to financial constraints.
- The group discussed what might be the optimum number of members of Parliament to ensure minority and independent representation.
- Parliament needs to be well compensated and well resourced so MPs are able to visit their constituencies.
- There should be some qualification standards for MPs but these standards should not be discriminatory.
- While many felt that the National People's Assembly is not necessary; some felt that the Assembly would be a good opportunity to get more public participation and dismissing it is missed opportunity.
With regard to the office of President:
- Most people want a president with a purely ceremonial role and as a symbol of national unity. However, there was also a suggestion that there is no need for a president because ceremonial functions could be fulfilled by other office holders.
- Most felt the President should be elected, either by the people or by Parliament.
- Regarding state of emergency, many stated that it is parliament's role to curtail crisis.
With regard to the office of Prime Minister
- There was general agreement that the PM should be elected by Parliament.
With regard to the Cabinet
- Most felt that the cabinet should be appointed by PM and there should be no mandatory power sharing in cabinet. However, committees in parliament should be reflective of the make-up of parliament. Members of the cabinet may come from outside Parliament, in order to bring in outside expertise.
With regard to the role, structure and composition of courts:
- The courts must be independent. To ensure this, judges should have life tenure.
- There was a proposal that all judges vacate their posts 3 months after elections and new judges be vetted.
With regard to State Security
- Many felt that the military should go back to the barracks and that the police should regain the role of internal security.
- If there is a National Security Council, as contained in the Commission draft, it should have civil society representatives and have gender parity.
- There should be independent commissions that genuinely investigate corruption and protect whistle blowers. The number of commissions could be combined to be more effective.
There was strong support for inclusion in the Bill of Rights for:
- Language, without limitation, to ensure that human rights are never infringed, even in a state of emergency. In particular, the right to life and freedom from torture are non-derogable rights, even in a state of emergency.
- Freedom from discrimination on the basis of gender, gender identity and sexual orientation, and this right should be expanded upon.
- Women's rights, beyond the right to freedom from discrimination on the basis of sex
- The right to civic education in schools as part of the right to education
- Rights for those with physical and mental disabilities, and there must be resources to enforce these rights.
- Social and economic rights and the right to environment as contained in the Commission draft.
- Right to bodily integrity and the right to exercise control over one's own body as contained in the commission draft
- Protection for all human rights defenders
- Rights compliant with international human rights conventions
- Rights to apply between individuals, as well as between individuals and the state, and there must be mechanisms to enforce these horizontal rights.
Most expressed a need for implementation and enforcement mechanisms, including:
- The Human Rights Commission, Ombudsman and enforcement agencies must be adequately resourced, and have powers to prevent or compel the state to act.
- Access to courts and strong penalties for those that infringe on Human Rights.
- Legislative implementation of rights, such as the right to freedom of information.
Many supported civic education, expressing:
- A need for more work on civic education on human rights and responsibilities, and to educate communities about how individual rights can coexist with community rights.
- That citizens must be active and hold government accountable.
Some suggested that:
- Some entity must review existing decrees for conflict with the constitution and human rights during a specified time frame.
- Everyone agreed that in the past there were rules and systems of accountability, but they were not properly implemented or enforced. There was also a shared concern that immunity for past actions had undermined a culture of public accountability.
- There was also a recognition that accountability was only possible once there was gender balance based on substantive equality.
- Most people supported the 2012 Draft—especially the whistleblower protections—and suggested further steps to ensure public accountability.
- The right of access to information was recognized as crucial for public accountability. Most agreed that this right needed to be set out in the Constitution or in protected legislation, including specific duties for public officials to make government information available to citizens through the media in a form accessible to everyone's diverse needs.
- Many people agreed that members of parliament needed to be held accountable. Most agreed that the constitution should establish systems like (i) a permanent officer to manage complaints when it is not in session, and (ii) a budget process based on the principle of gender budgeting.
- There was a specific recommendation to create a system in parliament for constituents to access their elected representatives that was both simple and not intimidating. Elected representatives must have a duty to consult with their constituents and reprimanded for failing to do so.
- The National Peoples' Assembly was contested. Some people did not want it since it was unelected, expensive and another bureaucratic layer against direct democracy (especially for young people). Others defended it as a body with limited powers that might serve a useful purpose in supervising parliament.
- Most people wanted more public participation in appointing and supervising public officials; possibly by a transparent process published in newspapers for all appointments to senior public offices.
- Everyone agreed that public accountability should extend to politicians and their constituents, civil society and elected local government, as well as a principle of grassroots supervision and evaluation of government performance.
- Everyone also agreed that there needed to be on-going civil education, especially for youth, to create a culture of active citizenship necessary to hold the government accountable.
- There was a recommendation that the Human Rights Commission must be independent should have its own power to prosecute violations, as well as horizontal jurisdiction over private violations of rights. The Human Rights Commission should have a gender and race commissioner, and the membership of the commission should be specified in the constitution.
- For elected local government, there was some interest in how elected local government could hold national government accountable as either an organized body with supervisory powers, or even as a federal-type system. The Code of Conduct should extend to the local level, but any criteria for holding public office should not exclude marginal groups.
There was deep-seated and widespread concern that the State draft Constitution does not specifically address issues relating to land and indigenous rights. There was strong support for the inclusion in the State draft Constitution of provisions which:
- Affirm the ultimate ownership of customary land as always remaining with customary owners and which protect customary land interests by entrenching land law in a manner consistent with the 1997 Constitution;
- Promote access to land and secure land rights for all land holders, users and occupiers (including owners and tenants);
- Promote equal access for men and women to land, as well as equal representation of men and women in land-related bodies, tribunals and departments;
- Mirror those provisions set out in the 2012 Commission Draft in respect of land, environment and natural resources law and policy principles, particularly with respect to environmental protection and social impact considerations;
- Entrench a "duty to consult" with respect to land and resources, consistent with the 2012 Commission Draft;
- Recognise the rights of diverse linguistic, cultural and religious communities in a manner consistent with the 2012 Commission draft Constitution, and indigenous rights consistent with the ILO C169 and the UN Declaration on the Rights of Indigenous People; and
- Clarify the ownership of the foreshore, minerals, fishing rights and water rights, and which provide for an equitable share to customary owners (where applicable) of any royalties or payments received by the State in respect of any exploitation of the same.
Some participants expressed the view that:
- The State draft Constitution should specifically address the rights of people who live in informal settlements; and
- A national land forum should be established, consisting of representatives from the State, land owners and tenants, for the purposes of providing education to the public, researching land issues and convening meetings
For any further queries contact either CCF on 9708431 or FWRM on 9249906.