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. Fijis 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. 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 Fijis 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 Fijis 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:

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 4s 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 4s 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 Acts 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:

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.

Party Asset Signature Provisional Signature Seizure by Collection Registration Requirement State Period Decree 4 of 2013 Kenya Act of 2011 Fiji Regulations of 1991 Yes No No Yes 5000 1000 28 days 180 days

Filing Fee

Membership Confidentiali Registrar Public Party Name Ban on Trade ty of Independent Funding of only in Union Membership from Political English Officers Identities Executive Parties Yes No Yes No No Yes No Yes Yes (Supervisor of Elections) No Yes

Internal Democracy Mandate No Yes

Internal Gender Quota No Yes

Criminal Sanction

$5005 Existing parties exempt No fee

5-10 years 2 years

No

No

180

No deadline

No

No

Yes

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 Asset seizure upon deregistration Public Funding Fiji Yes No Kenya No Yes Turkey Yes Yes South Korea Yes Yes Bulgaria Yes Yes Armenia 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 Fijis preexisting 16 parties, to produce 5000 endorsements by recently registered voters, translating to about one percent of Fijis current voter roll. While the number of signatures alone is a high bar to registration, the bar is raised for Fijis preexisting parties, which must meet the requirement within 28 days of Decree
2 3

Decree 4, s6(3)(k); s16(4) 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 associations 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 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 Signatures required AUS Canada Cook Islands None Fiji 5000 (in 28 days) 504588 India Jordan Kenya Kiribati 500 1000 10 % (in 180 women days) 2.3m 14.3m MicroNauru nesia None None NZ Palau Papua Philipp Samoa ines 8 to file None 100 to uphold 100000 Solomo South n Africa Islands None None Sri Lanka None Tonga UK

500

250

None

None

None

None

None

None

None

Number of registered 14.2m voters

24m

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 4s 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. Fijis current register contains only 16 political parties, 13 of which fielded candidates in the 2006 national elections. Fijis political party field can thus not be viewed as a glut of empty shells crowding its register, which
7 8

ibid, s6(i) Senegal eliminated three independent presidential candidates on the grounds of fraudulent signatures in 2012, among them musician Youssou NDour, who enjoys broad popular appeal. 9 Global comparative data on political party registration requirements on the ACE Network (http://aceproject.org/epicen/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.

may justify consolidation by raising the bar for registration elsewhere. Further, this high bar for party re-registration defeats inclusivitya forte of the proportional electoral system, which the GoF has committed to introduceas 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 moments 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 dHondt 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/cgibin/disp.pl/fj/cases/FJHC/1999/21.html?stem=0&synonyms=0&query=flp%20and%20voter%20and%20register) 18 UDHR, Article 21

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 partys own members. This technicality merits graphic juxtaposition, to demonstrate Decree 4s barely noticeable, and yet critical departure from the spirit of the Kenyan Act:
Kenya Political Parties Act 2011
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.

Government of Fiji Decree 4 of 2013

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 4s 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 Fijis 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 endorsementsfraudulent 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 matchor mismatchesan 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)

probabilities. 23 The Kenyan texts 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 4s 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 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 Fiji 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 Ghana Limited only to noncomplianc e with political finance regulation
25

Jordan Papua Russia Only by decision Political party After a six-months of Amman Appeal regains the right to cure period, only Court) if the party public funding upon order of the violates political when the illegal Supreme Court finance regulation contribution has finding violation orbeen paid to the of the Constitution if it is proved, in a Central Fund. Not of the Russian criminal case, the submitting two Federation, the partys affiliation consecutive annual federal or link to a foreign financial reports constitutional entity can lead to the laws, this Federal -orparty being law and other 27 If the party deregistered federal statutes28 accepted any fund from foreign entity26

Rwanda Sri Lanka UK The political party Recognized parties Only If the party can be suspended may cease to be fails to file annual or dissolved, but recognized as such accounts only after oneif they do not -oryear cure period to conform to the If a party submit its requirements, registered as a 29 accounts report including the 'minor party' fails requirement for to reconfirm its audited parties to status annually31 submit a copy of the audit to the Commission30

Zambia 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 4s mere right of appeal
23 24

Kenya Political Parties Act, s41(4); Miscellaneous Amendments Act, 2012 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/politicalfinance/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

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 4s 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 4s sanction regime marginalize it an as outlier by international comparison:35
Country AUS Canada Fiji Ghana India Indonesia Japan 3 years Kiribati 2 years Korea 5 years Marshall Islands 1 year Loses seat FSM 1 year Nauru 1 year NZ 2 years Loses seat Palau Fines only Papua Solomon Islands Tonga No 10 years imprison- 3 months 2 years ment 3 years

Maximum 6 5 years37 Imprisonment months36 Disqualification from office 5-7 years

2 years 3 months Loses seat Loses seat

5 years

10 years

3 years

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 34

ICCPR, article 1 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)

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 Body in charge of party registratio n
AUS Canada Fiji Ghana India Indonesia Kenya Kiribati Nauru NZ Palau Papua Solomon Islands Tonga Tuvalu UK

EMB

EMB

Government Ministry

EMB

EMB

EMB

Registrar vetted by Parliament No -diversified register members nominate

No register

EMB

39

Integrity of Ethics Political CommParties and ission Candidate 40 Commission

EMB

41

Supervisor of Elections No appointed register by Prime Minister

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 registrars 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 39

Decree 4, s15(4) 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/eroen/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

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 ICCPRs margin of derogation on individuals, whose impartiality the state has groundsand arguably standingto 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 45

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

10

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 Allowed Fiji Ghana India Ireland Kenya Nigeria NZ Papua Samoa South Africa Allowed Vanuatu Tonga UK

Party membership Allowed of Union Officers

Allowed

Banned

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 unions 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 governments 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/aceworkspace/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

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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 disqualies persons from trade union ofce 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 333 rd 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

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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 Fijis 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 Fijis outright ban from party membership on all civil servants.

54

UN Human Rights Committee, general Comment 25 Joint OSCE/ODIHR Venice Commission Guidelines on Political Party Legislation, para. 101 56 ICCPR article 22(2) 57 Article 4(1)
55

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Country

AUS

Canada

Cook Islands

Fiji

Ghana

India

Ireland

Kenya

Nigeria

NZ

Papua

Samoa

South Africa

Vanuatu

Tonga

UK

Party Restricted Restricted membership for Allowed for AEC 58 of public Deputy staff officers Heads

Banned outright in 2013

Allowed Cannot Allowed Banned (a ban Restricted declare but cannot declared proposed for high Allowed memberbe unconsti61 in 2011 functionship in a founding tutional by was not aries party59 member judiciary60 adopted

Allowed
62

Allowed
63

Allowed
64

Restricted Restricted cannot cannot Allowed join join 65 opposition extremist parties66 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 4s 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 59

Cook Islands Public Service Act 1995-1996 (http://www.paclii.org/ck/legis/num_act/psa19951996152/) 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/cgibin/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/cgibin/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/cgibin/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/cgibin/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;

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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, Fijis 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 Fijis 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)

15

4s 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 4s earlier limitation of political party names to the English language serves to remove their ethnic character. Further, Decree 4s 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 partys name and symbol, so that the Amendments prohibition amounts to deprivation of private property, which the state seemingly nationalizes, along with wound-up party assetsviolating 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 Disqualify PP application on technicality Fiji Disqualification for incorrect particulars Kenya Australia Canada Cook Islands (candidate signatures) no Kiribati (candidate signatures) no Samoa Tonga (candidate signatures)69 No

no

no

no

no

69

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

16

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 71

Joint OSCE ODIHR Guidelines on Political Party Legislation, 2010, paragraph 92 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

17

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

18