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.