Government of Fiji Decree 4 of 2013 A Comparative Analysis against International Instruments and Precedent

Table of Contents

1. Executive Summary

2. Decree 4 of 2013

2.1. Registration of Political Parties

2.1.1. 5000 Endorsements in 28 Days

2.1.2. The Right to an Effective and Timely Remedy

2.1.3. Confidentiality of Political Affiliation

2.2. Sanctions

2.2.1. Deregistration

2.2.2. Criminal Sanction

2.3. Independence of the Registrar

2.4. Restriction on Political Party Membership

2.4.1. Fiji’s Public Servants

2.4.2. Trade Union Officials

3. Decree 11 of 2013

3.1. Restriction on Political Party Names

3.2. Verification of Signatures

3.3. Restriction on Political Party Membership

1

1. Executive Summary

On 15 January 2013, the Government of The Republic of Fiji (GoF), promulgated the Political

Parties (Registration, Conduct, Funding, and Disclosures) Decree (4 of 2013), which repeals

and replaces the Electoral (Political Parties Registration) Regulations of 1991. Decree 4

requires existing political parties to re-register under its new provisions, or face dissolution and

forfeiture of assets to the state.

A key provision of Decree 4 requires Fiji’s longstanding political parties to gather 5000

endorsements signatures within 28 days of its sudden promulgation. Decree 4 thus sets a high bar

to stay on the register, a threshold that is daunting to leading parties, if not prohibitive to their

lesser peers. Global practice on signature requirements vary; however, the sheer number of

signatures required under Decree 4 sets Fiji apart from its peers in the region and globally,

particularly when compared in light of the number of registered voters. Because this requirement

applies to existing parties only, Decree 4 privileges new parties by allowing them an unspecified

amount of time to gather signatures.

Adding to the burden of collecting 5000 signatures in a short time-period, Decree 4 reduces the

field of potential signatories by imposing a blanket ban on “public officers” from becoming a

member of a political party. Decree 4 thus disqualifies approximately six percent of registered

voters from political party membership. While is there is international precedent for restricting

public servants from political party activity, these requirements generally apply to higher level

civil servants, such as those vested with discretion or deliberative powers, and aim at preventing

a conflict-of-interest or appearance of conflict of interest. Fiji, in comparison, broadly imposes a

sector-wide ban. Further, entirely unprecedented in global practice, Decree 4 prohibits civil

society leaders, such as trade union and employer association officers from party membership,

thereby manifestly breaching Fiji’s obligations under ILO Convention 87.

Decree 4 further compels political parties to publically disclose their members’ identities. Unlike

the anonymity of the secret electoral ballot, public endorsement of political parties for

registration exposes signatories to future reprisal, thus requiring a heartened leap of faith on the

part of the voter.

Should an existing political party be able to meet the high bar set by Decree 4, contravention of

any provision of Decree 4 suffices as grounds for deregistration - usually a last resort sanction,

reserved for political finance violations. Further, Decree 4 entrusts a Permanent Secretary in the

Ministry of Justice with administrative discretion to deregister political parties, rather than an

independent electoral commission, as has become standard international practice. Finally, Decree

4 sets criminal sanctions on political finance offences at 10-years; again establishing Fiji as

outlier by international comparison.

The right to form and join political parties is intricately linked to the fundamental rights of

freedom of expression and freedom of assembly and association. Numerous international and

regional instruments address political party registration in light of these rights. The

OSCE/ODIHR – Venice Commission Guidelines on Political Party Registration provide:

2

As basic and fundamental rights, freedom of association and the inter-dependent right of

freedom of expression should, insofar as possible, be enjoyed free from regulation. Any

activities regarding association with and formation of political parties which are not

expressly forbidden by law should therefore be considered permissible . . . [T]he right to

establish and participate in political parties should be available to all individuals free

from requirements or undue regulation. States should enact and implement legislation

respecting the general presumption in favor of political party formation, functioning and

protection from dissolution.

Similarly, the Council of Europe Guidelines and Explanatory Report on Legislation on Political

Parties provide that requirements on political party registration should be limited: “Any

requirements in relation to registration, however, must be such as are ‘necessary in a democratic

society’ and proportionate to the objective sought to be achieved by the measures in question.

Countries applying registration procedures to political parties should refrain from imposing

excessive requirements for territorial representation of political parties as well as for minimum

membership.”

The present study provides an analysis of Decree 4’s provisions in relation to standards or

obligations in international and regional instruments, and in comparison to global practices.

Because the GoF professes that it turned to the Kenyan Political Parties Act of 2011 as a

blueprint for Decree 4, the Kenyan Act provides a point of comparison where relevant.

2. Decree 4 of 2013

2.1 Registration of Political Parties

2.1.1 Registration of Political Parties – Comparison with Kenyan Law

As Decree 4’s starting point, the Kenyan law provides comparative context for assessing the

Decree.1 Even though Decree 4 recites entire sections from its Kenyan model verbatim, it

jettisons pivotal elements; it raises the parent Act’s prescribed fee schedule, timelines, and

criminal sanctions; and it grafts additional party obligations onto the underlying text. The chart

below illustrates that the Fijian deviations from the Kenyan Act operate in disfavor of political

parties, as is the case when comparing Decree 4 to its national predecessor:

1 It should be noted that the Kenyan and Fijian instruments can be readily distinguished by their respective genesis: The Kenyan

Act was enacted by political consensus, reached only after broad sounding out with political parties and other electoral

stakeholders, inter alia over 11 county visits. The Kenyan consultative process further involved public hearing of stakeholders in

Parliamentary Committee, prior to its tabling for plenary debate. Since its adoption, the Act underwent subsequent amendments,

designed to iron out lingering political party reservations. In contrast, the Fijian Decree was passed by promulgation, taking its

key stakeholders by surprise.

3

Party Asset

Seizure by

State

Provisional

Registration

Signature

Requirement

Signature

Collection

Period

Filing Fee

Party Name

only in

English

Membership

Ban on Trade

Union

Officers

Confidentiali

ty of

Membership

Identities

Registrar

Independent

from

Executive

Public

Funding of

Political

Parties

Internal

Democracy

Mandate

Internal

Gender

Quota

Criminal

Sanction

Decree 4 of

2013 Yes No 5000 28 days $5005 Yes Yes No No No No No 5-10 years

Kenya Act

of 2011 No Yes 1000 180 days

Existing

parties

exempt

No No Yes Yes Yes Yes Yes 2 years

Fiji

Regulations

of 1991

No No 180 No deadline No fee No No Yes

Yes

(Supervisor

of Elections)

No No No 1 year

Further in contrast to its Kenyan model, Decree 4 charges political parties for the cost of

publishing their declaration of assets in the media.2 Decree 4 also excises a fee for re-registration

of pre-existing political parties, which the Kenyan Act waives. The cost of compiling 5000

signatures compounds the immediate financial burden, whose cumulative effect brands Decree 4

as an instrument of attrition, rather than of regulation. Furthermore, Decree 4 denies political

parties public funding, which the Kenyan instrument grants.

In the event a political party is sanctioned with deregistration, Decree 4 vests its assets in the

state, a usurpation known neither to its Kenyan inspiration, nor to its national predecessor.3 Since

Decree 4 organizes political parties as associations of private persons, and because it limits their

receipts to contributions of private individuals, upon dissolution, party assets should vest in

former party members, and not in the state.4 While the study was able to identify at least four

other countries that seize party assets upon deregistration, those identified also provide public

financing to parties, and hence recover public funds, rather than seize private property.

Country Fiji Kenya Turkey South Korea Bulgaria Armenia

Asset seizure upon

deregistration Yes No Yes Yes Yes Yes

Public Funding No Yes Yes Yes Yes Yes

The Universal Declaration of Human Rights holds thus that, ‘Everyone has the right to own

property alone as well as in association with others. No one shall be arbitrarily deprived of his

property.’5 Further, the European Court of Human Rights reversed the decision of the Supreme

Court of Turkey, which had vested the assets of a dissolved political party in the state.6

2.1.2 5000 Signatures in 28 Days

Decree 4 not only compels new political formations, but also Fiji’s preexisting 16 parties, to

produce 5000 endorsements by recently registered voters, translating to about one percent of

Fiji’s current voter roll. While the number of signatures alone is a high bar to registration, the bar

is raised for Fiji’s preexisting parties, which must meet the requirement within 28 days of Decree

2 Decree 4, s6(3)(k); s16(4) 3 ibid, s4(3) 4 The Canada Elections Act of 2000, for instance, provides in s521(3) (b) if it directs liquidation under paragraph (a), direct the

financial agent of each registered association — or another person specified by the court — to liquidate the registered

association’s assets. 5 UDHR Article 17 6 CASE OF UNITED COMMUNIST PARTY OF TURKEY AND OTHERS v. TURKEY

(http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-58128#{"itemid":["001-58128"]})

4

4 coming into force. This 28-day deadline therefore privileges new parties over preexisting

parties by allowing a longer (and unspecified) time period for signature collection.

The 5000 required endorsements must bear the name, address, signature, and voter registration

serial number of the voter.7 It is noted that, even with longer time frames and fewer required

signatures, verification of signatures has proven to be a notoriously treacherous undertaking for

political party formations, as well as for registrars and appeals jurisdictions worldwide.8 Even

without taking into account the difficulty of verifying signatures, the chart below isolates Fiji as

an outlier in terms of the sheer number of signatures it requires for political party registration,

especially if measured against its small electorate.9

Country AUS Canada Cook

Islands Fiji India Jordan Kenya Kiribati

Micro-

nesia Nauru NZ Palau Papua

Philipp

ines Samoa

Solomo

n

Islands

South

Africa

Sri

Lanka Tonga UK

Signatures

required 500 250 None

5000

(in 28

days)

None 500

10 %

women

1000

(in 180

days)

None None None None None None None

8 to file

100 to

uphold

None None None None None

Number of

registered

voters 14.2m 24m 504588 2.3m 14.3m 100000

Further, as noted above, compared to the Kenyan Act, Decree 4 drastically cuts the timeframe

within which parties must produce the 5000 endorsements, allowing only 28 days where the

Kenyan Act allows 180 days.

The 28-day deadline is even more onerous when one takes into consideration the required

geographic spread of signatures and the logistical difficulties to get to more remote regions. In

particular, the Eastern Division is remote and made up of small villages many of which are

accessible by boat only and at considerable expense. The OSCE Guidelines are clear that

“geographic considerations should not be a requirement for political party formation”.10

These

Guidelines state: “Provisions regarding the limitation of political parties which represent a

geographic area should generally be removed from relevant legislation. Requirements barring

contestation for parties with only regional support potentially discriminate against parties that

enjoy a strong public following but whose support is limited to a particular area of the country.

Such provisions may also have discriminatory effects on small parties and parties representing

national minorities.”11

Decree 4’s restrictive measures may be justified in countries whose register is plagued by a glut

of inactive and unregulated political parties, especially when such entities are abused as vehicles

for tax evasion or money laundering. Raising the bar for party registration and maintenance is

thus contemplated for instance in Senegal, so as to consolidate its nearly 200 political parties,

only 20 of which fielded candidates in the last national elections. Fiji’s current register contains

only 16 political parties, 13 of which fielded candidates in the 2006 national elections. Fiji’s

political party field can thus not be viewed as a glut of empty shells crowding its register, which

7 ibid, s6(i) 8 Senegal eliminated three independent presidential candidates on the grounds of fraudulent signatures in 2012, among them

musician Youssou N’Dour, who enjoys broad popular appeal. 9 Global comparative data on political party registration requirements on the ACE Network (http://aceproject.org/epic-

en/CDTable?question=PC001&set_language=en) 10

Joint OSCE/ODIHR – Venice Commission Guidelines on Political Party Legislation, para. 54. 11

Joint OSCE/ODIHR – Venice Commission Guidelines on Political Party Legislation, para. 53.

5

may justify consolidation by raising the bar for registration elsewhere. Further, this high bar for

party re-registration defeats inclusivity—a forte of the proportional electoral system, which the

GoF has committed to introduce—as its stands to effectively force smaller parties off the

register.12

2.1.3 The Right to an Effective and Timely Remedy

Decree 4 fails to impose a deadline on the registrar to issue registration to eligible parties, unlike

the Kenyan Act.13

However, while an application for registration is pending, an eligible party

may not operate or function. This not only harms the party whose application is pending, but also

its signatories, who may wish to join another party if the application of their party of choice is

pending indefinitely. Yet, the decree provides that registered voters may be signatories on only

one list. For new parties that intend to register outside the 28-day period, lack of legal certainty

exposes applicants to the precariousness of missing candidate registration cut-offs for pending

snap elections, which could be called by writ at a moment’s notice. The applicable OSCE

Instrument thus requires that, ‘Deadlines for the registering authority to approve or reject

political party applications for legal recognition and party and candidate ballot qualification

requests should be clearly specified.’

Even though Decree 4 provides for an appeal to the High Court against decisions of the

registrar,14

it stops short of allowing an appeal against failure to deliver a timely decision, which

potentially denies applicants the right to an effective remedy. Here, the ICCPR applies directly,

holding that, ‘Each State Party to the present Covenant undertakes to ensure that any person

whose rights or freedoms as herein recognized are violated shall have an effective remedy,

notwithstanding that the violation has been committed by persons acting in an official

capacity.’15

The UN Human Rights Committee further specifies that, any ‘administrative

remedies should be accessible, affordable, timely and effective.’16

Lastly, Decree 4 applies High Court rules to the appeals procedure, but High Court precedent

does not augur well for appellants, having denied timely relief in the run-up to previous

elections.17

Bringing judicial review proceedings, rather than an appeal under Decree 4, would

further diminish the prospects of a remedy provided on time for elections.

2.1.4 Confidentiality of Political Affiliation

In the past political party membership was confidential in Fiji, a right guaranteed by extension of

the secrecy of the vote, as enshrined in the Universal Declaration of Human Rights.18

The

doctrine of the secrecy of the vote is so important that most modern democracies have

12 Odds to garner residual seats depends on the choice between the Hare Quota or the d’Hondt Formula in attribution those seats,

respectively either according to the highest average of votes per seat obtained, or the largest remainder of votes, which favours

independents and smaller parties. 13 Kenya Act, s5(2) 14 Decree 4, s30 15 ICCPR, article 2(3)(a) 16 UN Human Rights Committee, General Comment 9, s9 17 State v Supervisor of Elections, Ex parte United National Labour Party [1999] (http://www.paclii.org/cgi-

bin/disp.pl/fj/cases/FJHC/1999/21.html?stem=0&synonyms=0&query=flp%20and%20voter%20and%20register) 18 UDHR, Article 21

6

entrenched it constitutionally.19

Yet, Decree 4 expands the class of people entitled to inspect

political party membership lists to “any person”. By contrast, the Kenyan Act reserves access to

membership data to the party’s own “members”.

This technicality merits graphic juxtaposition, to demonstrate Decree 4’s barely noticeable, and

yet critical departure from the spirit of the Kenyan Act: Kenya Political Parties Act 2011 Government of Fiji Decree 4 of 2013 17. (1) A political party shall maintain at its head office and at each of its county office in the prescribed form, an accurate and authentic

record of—

(a) a register of its members in a form prescribed in the Second Schedule;

(3) A member of a political party may, during working hours and

on payment of the prescribed fee, inspect and obtain copies of the records of a political party maintained at its head office or county

office.

17.(1) A political party shall maintain at its head office and at each of its district or divisional office in the approved form, an accurate and

authentic record of—

(a) a register of its members in a form prescribed in the Second Schedule;

(3) Any person may, during working hours and on payment of the

prescribed fee, inspect and obtain copies of the records of a political party maintained at its head office or district or divisional office.

Decree 4’s variation from the Kenyan Act also attracts inquiry into the right to privacy of Fijian

political party members, as is enshrined in Article 17 of the International Covenant for Civil and

Political Rights (ICCPR).20

With regard to the right to privacy, the Human Rights Committee,

which monitors implementation of ICCPR, explains that ‘article 17 of the Covenant deals with

protection against both unlawful and arbitrary interference. That means that it is precisely in

State legislation above all that provision must be made for the protection of the right set forth in

that article.’21

Thus Decree 4 itself is in breach of the right to privacy under the UN Human

Rights Regime.

2.2 Sanctions

2.2.1 Deregistration

Fiji’s registrar may deregister a political party, if it contravenes any provision of Decree 4,

regardless whether it does so deliberately or inadvertently.22

Fraudulent registration also

expressly attracts deregistration. As worldwide experience has shown, the collection of voter

signatures via party agents is vulnerable to contamination by flawed endorsements—fraudulent

or negligent – yet the decree fails to distinguish between fraud and negligence, applying the same

sanctions to both.

As Decree 4 stands, the registrar can presume fraud, once a single signature fails to match—or

mismatches—an entry in the voter rolls. Here again, Decree 4 diverges from the Kenyan Act.

The Kenyan Act underwent amendment on this issue, so as to ensure that the criminal, rather

than the civil, burden and standard of proof apply to related disputes and appeals. In Kenya,

intent to defraud must now be proven beyond reasonable doubt, rather than on the balance of

19 Further comparative data on party registration signature requirements in the South African Region

(http://www.eisa.org.za/WEP/comparties2.htm) 20 ICCPR, article 17. 21 General Comment 16, s2

(http://www.unhchr.ch/tbs/doc.nsf/%28Symbol%29/23378a8724595410c12563ed004aeecd?Opendocument) 22 ibid s19 (a, d)

7

probabilities.23

The Kenyan text’s Fijian offspring so far lacks this critical safeguard, which

gives rise to a presumption of fraud that could render an appeal to the High Court futile.

Countries with deregistration sanction

Furthermore, Decree 4’s choice of the term “may” vests the registrar with unfettered discretion

to deregister, rather than merely suspend a political party. Even if the map above places Fiji

among 38 countries that allow sanctioning political parties with deregistration, one must closely

examine the grounds, which attract the sanction in each respective jurisdiction. The chart below

provides an overview, with only Decree 4 and the Russian Federation casting the net beyond

political finance violations. It should also be noted that not all countries selected for comparison

are universally regarded as bona fide multi-party democracies: Canada Fiji Ghana Jordan Papua Russia Rwanda Sri Lanka UK Zambia

Only upon

criminal

conviction and

by order of the

Supreme Court

– or—

If the party

does not have

as fundamental

purpose

participating in

public affairs

by endorsing

one or more of

its members as

candidates24

Registrar may deregister

party if it—

(a) has contravened the

provisions of this Decree;

(b) does not promote free

and fair nomination of

candidates;

(c) does not adhere to any

written law relating to the

nomination of candidates;

(d) obtained its registration

in a fraudulent manner; or

(e) has instigated or

participated in the

commission of an offence

under this Decree

Limited

only to

non-

complianc

e with

political

finance

regulation25

Only by decision

of Amman Appeal

Court) if the party

violates political

finance regulation

–or-

if it is proved, in a

criminal case, the

party’s affiliation

or link to a foreign

entity

-or-

If the party

accepted any fund

from foreign

entity26

Political party

regains the right to

public funding

when the illegal

contribution has

been paid to the

Central Fund. Not

submitting two

consecutive annual

financial reports

can lead to the

party being

deregistered27

After a six-months

cure period, only

upon order of the

Supreme Court

finding violation

of the Constitution

of the Russian

Federation, the

federal

constitutional

laws, this Federal

law and other

federal statutes28

The political party

can be suspended

or dissolved, but

only after one-

year cure period to

submit its

accounts report29

Recognized parties

may cease to be

recognized as such

if they do not

conform to the

requirements,

including the

requirement for

audited parties to

submit a copy of

the audit to the

Commission30

Only If the party

fails to file annual

accounts

-or-

If a party

registered as a

'minor party' fails

to reconfirm its

status annually31

If party fails to

submit annual

returns. A

deregistration like

this is not

necessarily

permanent, since

by submitting the

annual returns the

party involved

may be

reregistered32

Decree 4 also digresses from its peers, by entrusting first instance deregistration power to the

executive, which even Russia reserves to its Supreme Court. Decree 4’s mere right of appeal

23 Kenya Political Parties Act, s41(4); Miscellaneous Amendments Act, 2012 24 Canada Elections Act 200, s500(2), s 521(1) (http://laws-lois.justice.gc.ca/eng/acts/E-2.01/page-180.html#h-193) 25 Ghana Political Parties Law, Act 574 of 2000, s14 26 Jordan Political Parties Law 2012, s34(a) 27 Papua, Organic Law on the Inegrity of Political Parties and Candidates 2003, s42 28 Russian Federal Law on Political Parties s39(1) 29 Rwanda Organic Law No. 16/2003 of 27/06/2003 Governing Political Organizations and Politicians s47(1)

(http://www.idea.int/political-finance/sources.cfm#country-RW) 30 Sri Lanka Parliamentary Elections (Amendment) Act, No. 58 of 2009 s9(3) (http://www.idea.int/political-

finance/sources.cfm#country-LK) 31 UK Political Parties, Elections and Referendums Act 2000 s32-34 (http://www.legislation.gov.uk/ukpga/2000/41/section/34) 32 Zambia Electoral Act 2006

8

against decisions of the registrar falls behind the field of countries studied here, all of which

require the registrar to seek a court order to deregister political parties, in order to avoid

executive conflicts of interest.

The latter arrangement defers the first instance decision to an impartial and independent tribunal,

so as to protect opposition parties from arbitrary deregistration, which is prone to frivolously

saddle them with legal fees, and which must thus be considered a sanction of last resort. The

ICCPR hence instructs States Parties to ensure that, ‘In the determination of any …of his rights

and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a

competent, independent and impartial tribunal established by law.’33

When it comes to political party deregistration, international instruments caution that,

‘Prohibition or dissolution of political parties, as a particularly far-reaching measure, should be

used with utmost restraint. Before asking the competent judicial body to prohibit or dissolve a

party, governments or other state organs should assess, having regard to the situation of the

country concerned, whether the party really represents a danger to the free and democratic

political order or to the rights of individuals and whether other, less radical measures could

prevent the said danger.’34

2.2.2 Criminal Sanctions

Decree 4 holds a person who recklessly makes a false statement under Decree 4 liable to

imprisonment for a term not exceeding 5 years. This leads to the question whether flawed entries

among the 5000 signatures constitute recklessness. The section could give rise to criminal

liability on the part of party official submitting the signatures, but also on the part of signatories

themselves, for instance if they are a public servant or an undischarged bankrupt, caught unaware

of Decree 4’s exclusionary provisions.

Decree 4 sanctions candidates who fail to declare their family assets with jail-time of up to 10

years. Again, while good governance objectives legitimize criminalization of political finance

infractions, the severity of Decree 4’s sanction regime marginalize it an as outlier by

international comparison:35

Country AUS Canada Fiji Ghana India Indonesia Japan Kiribati Korea Marshall

Islands FSM Nauru NZ Palau Papua

Solomon

Islands Tonga

Maximum

Imprisonment

6

months36 5 years37 10 years

No

imprison-

ment

3 months 2 years 3 years 2 years 5 years 1 year 1 year 1 year 2 years Fines

only 2 years 3 months

Disqualification

from office 5-7 years 3 years 5 years 10 years

Loses

seat 3 years

Loses

seat

Loses

seat

Loses

seat

While the Kenyan Act deems a person who joins a second party as a signatory to have resigned

from the first, Decree 4 holds such person criminally liable for a sentence of up to 5 years

imprisonment.38

33 ICCPR, article 1 34 Inter-American Democratic Charter 35 Source: International IDEA Political Finance Data (http://www.idea.int/political-finance/question.cfm?id=296) 36 AEC (http://www.aec.gov.au/Parties_and_Representatives/financial_disclosure/guides/political-parties/appendix3.htm) 37 Elections Canada (http://www.elections.ca/content.aspx?section=pol&dir=lea/man/ec20195&document=p6&lang=e#a63)

9

2.3 Independence of the Registrar

As shown above, Decree 4 confers significant, yet discretionary powers over political parties to

the office of the registrar, who in the case of Fiji is embodied in a Permanent Secretary directly

responsible to the Minister of Justice. The chart below, however, illustrates that independence

from the executive has hardened into a best practice, which is widely heeded when instituting

political party registrars, especially by delegating party registration to independent Election

Management Bodies (EMBs):

Country AUS Canada Fiji Ghana India Indonesia Kenya Kiribati Nauru NZ Palau Papua Solomon

Islands Tonga Tuvalu UK

Body in

charge of

party

registratio

n

EMB EMB

Govern-

ment

Ministry

EMB EMB EMB

Registrar

vetted by

Parliament

-diversified

members

nominate

No

register

No

register EMB39

Ethics

Comm-

ission 40

Integrity of

Political

Parties and

Candidate

Commission

EMB41

Supervisor

of Elections

appointed

by Prime

Minister

No

register EMB

It is doubtful that a Permanent Secretary position within a government ministry can meet

commitments under the Warwick Declaration, whose adoption Fiji itself hosted at Suva, and

which requires election administrators to ‘act with impartiality in decision-making and declare

any conflict of interest.’42

Comparison of Decree 4 with its Kenyan parent again enlightens discussion: The Kenyan Act

was amended in early 2013, since its initial guarantees of the independence and impartiality of its

registrar of political parties did not universally satisfy stakeholders. Amendments further

diversified the selection committee tasked with nominating candidates for the offices of registrar

and deputy registrar. The Kenyan selection committee now seats: a chairperson nominated by the

President; one person nominated by the Law Society of Kenya: one person nominated by the

Institute of Certified Public Accountants of Kenya; one person nominated by the Association of

Professional Societies in East Africa; and two persons nominated by the political parties. The

two candidates nominated as registrar and deputy registrar cannot be of the same gender.43

The lengths to which Kenya goes to ensure that individuals vested with the power to register, to

fine, and to deregister political parties, are independent and impartial, starkly contrasts with

Decree 4. Since the Fijian registrar’s sanction powers far exceed those of its Kenyan counterpart,

institutional independence and impartiality are indispensible.

2.4 Restrictions on Political Party Membership

Decree 4 broadly restricts membership in political parties. The applicable section merits

reproduction in full:

38 Decree 4, s15(4) 39 New Zealand Electoral Act 1993 (http://www.legislation.govt.nz/act/public/1993/0087/latest/DLM307519.html) 40 Code of Ethics Act, 33 PNCA, 1999 (http://www.idea.int/political-finance/sources.cfm#country-PW) 41 Solomon Islands Political-Parties-Registration-and-Administration Act 2009 (http://aceproject.org/ero-

en/regions/pacific/SB/solomon-islands-political-parties-registration-and/view) 42 Pacific Islands, Australia and New Zealand Electoral Administrators – PIANZEA Network, Warwick Declaration, Made at

Korolevu, Fiji on 10 October 1997 (http://www.aec.gov.au/About_AEC/AEC_Services/International_Services/PIANZEA/) 43 Kenya Political Parties (Amendment) Act, 2012

10

14. ‘A public officer shall not be eligible to be an applicant or a member of a proposed political party or a political

party. For the purposes of this section, “public officer” means any person

(a) holding any office in, or as a member of, a statutory authority, a commission, or a board established by or continued

in existence by any written law;

(b) holding an office of a judge, a magistrate or an office of any court or tribunal established by written law;

(c) holding any office in the public service, the Fiji Police Force, Fiji Corrections Services or the Republic of Fiji

Military Forces; or

(d) who is an elected or appointed officer of a trade union registered under the Employment Relations Promulgation

2007, or of any federation, congress, council or affiliation of trade unions, or of any federation, congress, council or

affiliation of employers.

(3) Notwithstanding anything contained in subsection (2), for the purposes of this section, “public officer” does not

include the President, the Prime Minister, a Minister, the Leader of the Opposition or a Member of Parliament.

(4) Any public officer who intends to be an applicant or a member of, or hold office in, a proposed political party or a

political party registered under this Decree, must resign from the respective public office prior to applying to become

an applicant or a member of, or hold office in, a proposed political party or a political party registered under this

Decree.

(5) A public officer is deemed to have vacated his or her office mentioned in subsection (2) immediately before the

time at which he or she applies to become an applicant or a member of, or hold office in, a proposed political party or a

political party registered under this Decree.44

2.4.1 Trade Union Officials

The ICCPR lays down that, ‘Everyone shall have the right to freedom of association with others,

including the right to form and join trade unions for the protection of his interests.’ Yet, in

section 14, Decree 4 not only excludes all “pubic officers” as traditionally understood from party

membership but stretches its definition of “public officer” to ban elected and appointed officers

of trade unions and employer associations from party membership.

Trade union and employer representatives patently fall outside the ICCPR’s margin of

derogation on individuals, whose impartiality the state has grounds—and arguably standing—to

demand, in order to protect the rights of others. Membership of civil society organizations

fundamentally differs from public service: Public employment does not constitute a fundamental

right, but a voluntary undertaking against remuneration, privileges, and benefits, provided by

state. In addition, to build a non-partisan civil service, it may be acceptable for the state to

exclude some employees from party membership. The state can thus condition public

employment on restrictions, if not on outright forfeiture of freedom of association.45

Conversely, membership in unions or other non-governmental organizations constitutes a

fundamental right in itself, much as the right to join political parties. Membership in civil

society, such as in trade unions, as well as in political parties can not be rendered mutually

exclusive by the state, which is not privy to either relationship. The GoF lacks justification to

curtail this right, because it legally regards both, political parties and trade unions as private,

rather than as public associations, as it disentitles both to public funding.

One could argue that politicized trade unions could unduly influence their members’ political

choices. And in fact, Decree 4 curbs the political influence of trade unions, as well as other

44 Decree 4, s14 45 As was shown by the UK landmark case Council of Civil Service Unions vs Minister for Civil Service, 1984

11

organizations, by prohibiting collective donations to candidates and parties, while at the same

time capping individual donations.

Yet, even if one were to presume that partisan activity of union leaders influences the leanings of

its members, this does not impinge on members’ right to freely choose their individual political

affiliation, since unions themselves do not condition accepting members by discriminating their

party political affiliation. Conversely, union members might take direct interest in disclosure of

the political affiliation of the leaders they elect. It is hence not surprising that research for

international precedent of such prohibition came up blank.46

Country AUS Canada

Cook

Islands Fiji Ghana India Ireland Kenya Nigeria NZ Papua Samoa

South

Africa Vanuatu Tonga UK

Party

membership

of Union

Officers

Allowed Allowed Allowed Banned Allowed Allowed Allowed Allowed Allowed Allowed Allowed Allowed Allowed Allowed Allowed Allowed

Moreover, this particular limb of Decree 4 runs counter to the directly applicable ILO

Convention on Freedom of Association, which Fiji ratified in 2002, and which holds that

workers’ and employers’ organizations shall have the right ‘to elect their representatives in full

freedom, to organise their administration and activities’ and that ‘public authorities shall refrain

from any interference which would restrict this right or impede the lawful exercise thereof.’

Lastly, the Convention clarifies that, ‘the law of the land shall not be such as to impair, nor shall

it be so applied as to impair, the guarantees provided for in this Convention.’47

The Digest of decisions and principles of the Freedom of Association Committee of the ILO

Governing Body provides authoritative interpretation and case law on the issue of political

activity of trade unions: ‘A trade union’s activities cannot be restricted solely to occupational

questions.’ It further lays down that, ‘The choice of a general policy, notably in economic affairs,

is bound to have consequences on the situation of workers (remuneration, holidays, working

conditions); The freedom of expression which should be enjoyed by trade unions and their

leaders should also be guaranteed when they wish to criticize the government’s economic and

social policy.’48

Further, ‘normal control of the activities of trade unions should be effected a posteriori and by

the judicial authorities; and the fact that an organization which seeks to enjoy the status of an

occupational organization might in certain cases engage in activities unconnected with trade

union activities would not appear to constitute a sufficient reason for subjecting trade union

organizations a priori to control with respect to their composition and with respect to the

composition of their management committees. The refusal to register a union because the

authorities, in advance and in their own judgment, consider that this would be politically

undesirable, would be tantamount to submitting the compulsory registration of trade unions to

46 Research Question on the ACE Electoral Network

(http://aceproject.org/acl_users/credentials_cookie_auth/login_form?came_from=http%3A//aceproject.org/electoral-advice/ace-

workspace/questions/open-questions/84327510/conversation_view) 47 ILO Convention 87 Freedom of Association San Francisco 1948

(http://www.africaefuture.org/files/synapostel/ilo%20core%20conventions.pdf) 48 ILO Digest, paragraph 29

12

previous authorization on the part of the authorities, which is not compatible with the principles

of freedom of association.’49

The ILO further specifies that, ‘Legislation, which disqualifies persons from trade union office

because of their political beliefs or affiliations, is not in conformity with the right of trade

unionists to elect their representatives in full freedom. Where a body representing the workers in

a dispute is elected by those workers, the right to elect their representatives in full freedom is

restricted if some only of those representatives, on the basis of their political opinions, are

considered by a government to be capable of participating in conciliation proceedings. Where the

law of the land provides that the government may only deal with those who appear to be the

representatives of the workers of an undertaking and, in effect, choose those with whom it will

deal, any selection based on the political opinions of those concerned in such a way as to

eliminate from negotiations, even indirectly, the leaders of the organization that is the most

representative of the category of workers concerned would appear to result in the law of the land

being so applied as to impair the right of the workers to choose their representatives freely.’50

And London School of Economics professor Richard Hyman insists in the political nature of

trade unions, since ‘regulating the labour market involves political issues …. The state is not

only the ultimate guarantor of contracts, including employment contracts; whether by active

intervention or by default, it underwrites a particular (im)balance between different participants

in market relations. At a very minimum, unions have to influence the ways in which the state

shapes the rules of the game in the labour market, including their own right to exist, to bargain

collectively and to mobilize collective action.’51

Ancillary international law echoes ILO instruments: The Declaration on the Right and

Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally

Recognized Human Rights and Fundamental Freedoms holds that, ‘For the purpose of promoting

and protecting human rights and fundamental freedoms, everyone has the right, individually and

in association with others, at the national and international levels: To form, join and participate

in non-governmental organizations, associations or groups,’52

implicitly including those who are

already members of political parties.

The Council of Europe Guidelines and Explanatory Report on Legislation on Political Parties

repeats that, ‘everyone must be free to choose to be a member of a political party or not and to

choose which party to join.’53

While not a vestige of liberal democracy, even the Commonwealth

of Independent States (CIS) enshrined in its Convention on Human Rights and Fundamental

Freedoms that, ‘Everyone shall have the right to freedom of peaceful assembly and to freedom of

association with others, including the right to form and to join trade unions for the protection of

his interests.’

49 Ibid, para. 305, (See the 1996 Digest, para. 268; 307th Report, Case No. 1918, para. 251; and 333rd Report, Case No. 2301,

para. 591.) 50 Ibid, paragraphs 415-416 51 Trade Unions, Politics and Parties: is a new configuration possible? (http://trs.sagepub.com/content/16/3/315.full.pdf+html) 52 Article 5(b) 53 Some specific issues, paragraph B.1.21

13

The UN Human Rights Committee further insists that the ICCPR ‘requires the full enjoyment

and respect for the rights guaranteed in articles 19, 21 and 22 of the Covenant, including freedom

to engage in political activity individually or through political parties and other organizations,

freedom to debate public affairs, to hold peaceful demonstrations and meetings, to criticize and

oppose, to publish political material, to campaign for election and to advertise political ideas.’54

(emphasis added).

In depth research failed to identify a single country that bars trade union officers, elected or

appointed, from membership in political parties.

2.4.2 Fiji’s Public Servants

The OSCE Guidelines provide that states may impose reasonable restrictions of freedom of

association for three categories of people: police, armed forces and officials of the State.55

Similarly, ICCPR provides for reasonable restrictions on freedom of association for armed forces

and police. The Covenant qualifies that, ‘No restrictions may be placed on the exercise of this

right other than those which are prescribed by law and which are necessary in a democratic

society in the interests of national security of public safety, public order (ordre public), the

protection of the public health or morals or the protection of the rights and freedoms of others.

This article shall not prevent the imposition of lawful restrictions on members of the armed

forces and of the police in their exercise of this right.’56

The Inter Parliamentary Union Declaration on Criteria for Free and Fair Elections thus qualifies

that, ‘In particular, States should: Provide for the formation and free functioning of political

parties, possibly regulate the funding of political parties and electoral campaigns, ensure the

separation of party and State, and establish the conditions for competition in legislative elections

on an equitable basis.’57

(emphasis added).

Thus, reasonable restrictions on political party activity of public servants do not conflict with

international instruments. Accordingly, the table below reveals precedent among liberal

democracies that restrict political party membership of public officers. However, as shown, none

go as far as Fiji’s outright ban from party membership on all civil servants.

54 UN Human Rights Committee, general Comment 25 55

Joint OSCE/ODIHR – Venice Commission Guidelines on Political Party Legislation, para. 101 56 ICCPR article 22(2) 57 Article 4(1)

14

Country AUS Canada Cook

Islands Fiji Ghana India Ireland Kenya Nigeria NZ Papua Samoa

South

Africa Vanuatu Tonga UK

Party

membership

of public

officers

Restricted

for AEC

staff

Restricted

for

Deputy

Heads

Allowed 58

Banned

outright

in 2013

Cannot

declare

member-

ship in a

party59

Allowed

(a ban

proposed

in 2011

was not

adopted

Restricted

for high

function-

aries

Allowed

but cannot

be

founding

member

Banned -

declared

unconsti-

tutional by

judiciary60

Allowed 61

Allowed 62

Allowed 63

Allowed 64

Allowed 65

Restricted

cannot

join

opposition

parties66

Restricted

cannot

join

extremist

parties

The Kenyan Act, which the GoF professes to follow, does not restrict political party membership

per se, but merely bars public officers from endorsing the formation of new political parties by

publically ‘declaring support for a party’, presumably since civil servants’ political affiliation

would thus be revealed by their public endorsement, thereby compromising public trust in their

impartiality.67

Again, the Kenyan Act appears to follow a proportional, responsive approach,

while Decree 4 adopts a muscular, intrusive stance in the quest to separate public office and

partisan politics.

Australia bars members of its electoral commission from political party membership, a measure

that could be held proportionate to the aim of assuring impartial administration of elections. On

the same grounds, Canada prohibits high-level civil servants to join political parties. And in

Ireland, members of grades with maximum salaries above the clerical officer are completely

debarred from political activity, including standing for election to a local authority, making

public statements or comments on political topics, and being a member of a political party.

Clerical officers and equivalents who wish to join a political party or stand for election to a local

authority, may be given permission to do so by the head of department. However, permission

may be refused in the case of officers engaged in certain types of work. Members of some other

grades, such as service officers, may engage in political activity without seeking prior

permission. And the United Kingdom bars public servants from membership in extremist parties.

Once again, an argument of proportionality could test Decree 4’s blanket measure, as compared

to that of its peers. Canada, Australia and Ireland merely restrict civil servants with acute

conflict-of-interest, such as those vested with discretion or deliberative powers, while Fiji

imposes a sector-wide ban.

58 Cook Islands Public Service Act 1995-1996 (http://www.paclii.org/ck/legis/num_act/psa19951996152/) 59 Ghana Civil Service Law, 1993 (PNDCL 327) 60 Independent National Electoral Commission and the Attorney General of the Federation v. Musa 61 New Zealand Code of Conduct for the State Services (http://www.ssc.govt.nz/node/2070) 62 Papua Public Services (Management) Act 1995 (http://www.paclii.org/cgi-

bin/disp.pl/pg/legis/consol_act/psa1995253/psa1995253.html?stem=0&synonyms=0&query=public%20and%20service%20and

%20code%20and%20of%20and%20conduct) 63 Samoa Public Service Act 2004 (http://www.paclii.org/cgi-

bin/disp.pl/ws/legis/num_act/psa2004152/psa2004152.html?stem=0&synonyms=0&query=public%20and%20service%20and%2

0code%20and%20of%20and%20conduct) 64 South Africa Public Service Code of Conduct (http://www.psc.gov.za/documents/code.asp) 65 Vanuatu Public Service Act No 11 of 1998 (http://www.paclii.org/cgi-

bin/disp.pl/vu/legis/num_act/psa1998152/psa1998152.html?stem=0&synonyms=0&query=public%20and%20service%20and%2

0code%20and%20of%20and%20conduct) 66 Tonga Public Service (Amendment) Act 2010 (http://www.paclii.org/cgi-

bin/disp.pl/to/legis/num_act/psa2010232/?stem=0&synonyms=0&query=public%20and%20service%20and%20code%20and%2

0of%20and%20conduct) 67 Kenya PPA, s12. (1) A public officer shall not (a) be eligible to be a founding member of a political party;

15

The GoF receives some support in its quest to disentangle the public service from party politics

in reports of international election observers, who found in 2006 that the Office of the Supervisor

of Elections (OSE) ‘has de jure the right to appoint Returning Officers, de facto always relies on

the powerful (public servant) Division Commissioners to fill these posts. The automatic

appointment of the four Division Commissioners as ROs leaves major organisational and

decision-making responsibilities in the hands of the civil service.’ According to the Pacific Island

Forum election observation report, almost all polling staff were public servants, since they were

recruited in cascade down from Divisional Commissioners, who are default appointees as

Returning Officers. International election observation reports hence lend acuity to the GoF

objective to segregate partisan politics from the public service. However, this experience

highlights the problems with the power of incumbency as much as problems of political

affiliations of public servants.

Finally, Fiji’s choice of instrument also sets Fiji apart from its peers that restrict public servants’

party membership, for Decree 4 is the only instance of “political party regulation” that imposes

the ban. Elsewhere, public service codes-of-conduct impose the restriction.

Apart from this formal anomaly, restrictions on political party membership of civil servants

would not isolate Fiji when compared to international practice, nor directly offend against

obligations under the ICCPR. Yet the question is whether Fiji’s response is proportionate to any

identified potential problems. An outright ban applied to all civil servants, including apolitical

civil servants such as those that providing cleaning or maintenance services, rather then more

limited restrictions, appears overreaching when contrasted with the importance of the right

infringed.

3. Decree 11 of 2013

On February 16, 2013--two days after the deadline for re-registration of political parties lapsed--

GoF promulgated the Political Parties (Registration, Conduct, Funding, and Disclosures)

(Amendment) Decree 11 of 2013, modifying the merely one-month-old Decree 4.

3.1 Restriction on Political Party Names

The Amendment to Decree 4 imposes further restriction on the names, acronyms and symbols

that future political parties can use, effectively barring those political parties, which did not

reregister by the 28-day deadline, from preserving their original “brand identity” when

registering afresh.

Limiting choice of political party names constitutes a restriction on freedom of association.

International law precisely defines the grounds, on which states can derogate from freedom of

association, itemizing that, ‘in the exercise of his rights and freedoms, everyone shall be subject

only to such limitations as are determined by law solely for the purpose of securing due

recognition and respect for the rights and freedoms of others and of meeting the just

requirements of morality, public order and the general welfare in a democratic society.’68

Decree

68 Universal Declaration of Human Rights, article 29(2)

16

4’s February 16 Amendment restricts the right to name associations beyond the above margin

tolerated by international law:

Parties with certain names not to be registered

3. The Registrar shall refuse an application for the registration of a proposed political party if—

(h) the name of the proposed political party, the abbreviation or the acronym of the name or the symbol is the same as

the name, the abbreviation or the acronym of the name or the symbol of –

(iii) a political party which has been deregistered or wound-up by the registrar under this decree or under

any repealed law governing registration of political parties.

It could be argued that Decree 4’s earlier limitation of political party names to the English

language serves to remove their ethnic character. Further, Decree 4’s prohibition of the word

“independent” could be justified by the protection of the rights of others, specifically those of

independent candidates. Even restricting the length of party names to no more than five words

could be defended by equal allocation of space on the ballot paper. Conversely, a bar on

associations to preserve the identity and name recognition of their historic precursors lacks

credible policy grounds, and thus reaches beyond the margin tolerated by international law.

Moreover, members of wound-up parties could claim collective ownership of their former

party’s name and symbol, so that the Amendment’s prohibition amounts to deprivation of private

property, which the state seemingly nationalizes, along with wound-up party assets—violating

the international right to property. Return to democratic rule could well see claims for

compensation, restitution, and/or damages, if and when affected parties reconstitute.

3.2 Verification of Signatures

The Amendment also introduces additional criteria for refusal of registration of a political party

by the Registrar. The additional criteria operate retrospectively, since they had to be fulfilled by

political parties prior to promulgation of the amendment. Retrospective promulgation offends

against certainty of law, and thus against a fundamental principle of the rule-of-law and of

natural law. The Amendment compels in pertinent part:

s4(5) The registrar shall refuse an application for the registration of a proposed political party if the registrar is satisfied

that the application contains any information or particulars which is (sic) false or incorrect or which has been obtained

in a fraudulent manner.

While many states require proposed political parties to produce signatures, no such country

disqualifies applications on the grounds of clerical technicalities that do not affect the viability of

the required quantum of signatures. In other words, other countries grant party registration even

if signatures are tainted, as long as the applicant meets the required threshold of valid signatures.

This latitude safeguards the overarching freedom of association against inevitable inconsistencies

in signatory addresses, middle initials, or other non-essential “particulars.”

Country Fiji Kenya Australia Canada Cook Islands

(candidate

signatures)

Kiribati

(candidate

signatures)

Samoa

Tonga

(candidate

signatures)69

Disqualify PP application on

technicality

Disqualification for incorrect

particulars

no no no no no no No

69 Tonga Electoral Act 1989 (http://legislation.to/Tonga/DATA/PRIN/1989-022/ElectoralAct1989.pdf)

17

International instruments provide that, ‘refusal of registration is in effect a form of dissolution

and should only be undertaken in the most extreme cases where necessary in a democratic

society, such as for content that directly promotes violence or incites racial or other hatred.’70

Guidance applied over three continents provides that, ‘Where the collection of signatures is

required to illustrate a minimum level of citizen support, parties must be allowed clear deadlines

and a reasonable amount of time for the collection of such signatures, as well as an opportunity

to submit additional signatures if necessary. While lists of signatures can be checked for

verification purposes, this practice can be abused and as such should be carefully regulated,

including concerning the publication of lists and who has standing to present challenges to them.

If verification is deemed necessary, the law should clearly state the process for such verification

and ensure it is fairly and equally applied to all parties. In order to enhance pluralism and

freedom of association, legislation should not limit a citizen to signing a supporting list of only

one party. Such a limitation is too easily abused and can lead to the disqualification of parties

who in good faith believed they had fulfilled the requirements for registration. (…) Verification

of party signature support lists maybe necessary to determine their accuracy, but should be

designed to ensure the equality and fairness in application.’71

The Australian and Canadian Election Commissions, for instance, provide detailed procedural

rules for the verification of signatures.72

Impartial observation of signature disclosure and vetting

procedures can enhance public confidence in the process. Yet, it further appears that the

Amendment deprives the Fijian registrar of any margin of discretion to grant registration despite

technical errors, since the Amendment compels the Registrar to refuse registration if any

technical errors are found. The sensitivity of the signature verification process has lead the

OSCE to adopt the following principle:

‘A common feature of all legislation should be the requirement that the prohibition of political

parties be the responsibility of judicial authorities alone (either under the constitutional or other

appropriate court). A hearing before a competent judicial authority should be necessary in all

cases of dissolution or prohibition. Measures directed at the prohibition or legally enforced

dissolution of political parties should only follow a determination of unconstitutionality of the

party by judicial authorities and should only be applied in exceptional cases governed by the

principle of proportionality.’73

3.3 Restriction on Political Party Membership

The Amendment extends the ban on political party membership from elected or appointed

officers of certain civil society organizations to anyone who receives remuneration from those

same civil society organizations. The Amendment could thus catch apolitical clerical personnel,

70 Joint OSCE ODIHR Guidelines on Political Party Legislation, 2010, paragraph 92 71 Ibid, paragraph 52 72 AEC signature verification rules

(http://www.aec.gov.au/parties_and_representatives/party_registration/Registration_Decisions/registration-tests.htm), Elections

Canada Signature Verification Rules (http://www.elections.ca/content.aspx?section=pol&dir=pol/bck&document=index&lang=e) 73 OSCE, op cit, paragraph 232

18

or even independent contractors of civil society organizations, such as individuals providing

cleaning or catering.