THE PROTECTION OF THE INTERETS OF INDIGENOUS FIJIANS IN THE SENATE ETHNICALLY-BASED ELECTORAL SYSTEM OF FIJI: EXAMPLES OF RACIAL DISCRIMINATION?
WATNA
MORI
This paper will address
whether the protection of indigenous Fijians in the Senate and the
ethnically-based electoral system of Fiji’s House of Representatives
amount to racial discrimination. This paper is only concerned with racial
discrimination as it is defined in international human rights law.
In
order to determine the two issues of possible racial discrimination, this paper
will discuss the structure and background of Fiji’s electoral and
parliamentary system, followed by a definition of racial discrimination under
international human rights law, and in conclusion an application of the law to
the facts. Hence, a judgment as to whether the addressed aspects of Fiji’s
electoral system and Senate are in fact racially discriminatory.
1. The Facts: Fiji’s Parliamentary and Electoral System
Before a discussion as to
Fiji’s electoral and parliamentary system is entered into, consideration
must be given to its current ethnic makeup. The two biggest ethnic groups in
Fiji are the indigenous Fijians (hereafter “Fijians”) and the
Indo-Fijians (or Indians). Fiji from the 25 August 1996
census[1] consists of 51.8 per cent Fijians, 43.6
per cent Indians and 5.3 per cent others, such as Chinese, Europeans and other
Pacific Islanders.
Fiji’s parliamentary
and electoral systems are formed under the 1997 Fijian Constitution. This is
Fiji’s third constitution since it gained independence from Britain in
1970. The 1997 Constitution and the one previous to it in 1990 are both results
of the ethnic tensions between the Fijians and Indians, which continues to exist
in Fiji. These tensions were evidenced by the changes made to the electoral and
parliamentary systems from Constitution to Constitution.
Fiji became a
republic in 1990 with the President as its Head of State. Fiji’s
Government structure is based on the British Westminster system, therefore, it
has a lower house; the House of Representatives, and an upper house; the
Senate.
The current Fijian Constitution establishes that the House of
Representatives is to comprise of 75 members, 46 of whom are elected by ethnic
rolls and 25 by open rolls. The 25 open seats are available for candidacy by any
ethnic group. As to the 46 communal seats, the break down is as follows; 23
Fijians, 19 Indians, 1 Rotumans and 3 others.
The Senate consists of 32
Senators who are appointed by the President. The Senators are appointed as such;
14 of the Senators are appointed by the President on the advice of the Great
Council of Chiefs (Bose Levu Vakaturaga), 9 on the advice of the Prime Minister,
8 on the advice of the Opposition Leader and 1 from Rotuma, appointed on the
advice of the Rotuma Island Council. The Senate does not have powers to create
legislation or to block legislation originating from the lower house. It merely
has power to ‘debate and delay’[2]
legislation.
The Great Council of
Chiefs in consultation with the Prime Minister appoints the President. The
President must act on the advice of the Prime Minister and Cabinet, except where
the Constitution states otherwise. However, these constitutional exceptions,
such as the appointment of the Prime Minister, are only conventional powers.
Therefore, the President has minimal practical effect on the governance of
Fiji.
The Great Council of Chiefs is comprised of traditional Fijian
Chiefs and several commoners in special fields. It appoints the Fijian President
in consultation with the Prime Minister and advises the President on the
appointment of 14 Senators. The Great Council of Chiefs is also instrumental in
advising the Ministry of Fijian Affairs and the Fijian Affairs Board.
The
Evolution of Fiji’s Electoral and Parliamentary System
The basic structure of
Fijian Government has been present since Independence and the first Constitution
in 1970. The position of the Great Council of Chiefs and the communal voting
system was a direct result of the British colonial era in Fiji, which instigated
segregation between the Fijians and other ethnic groups, placing higher
importance on Fijian interests than that of non-indigenous Fijians.
The
self-proclaimed Chief of all Fiji, Cakobau, accessioned Fiji to Britain in 1874.
The first Governor of Fiji, Sir Arthur Gordon, was intent on preserving the
‘Fijian way of life’[3] but this
proved difficult as the Fiji Islands consisted of a variety of groups both
Polynesian and Melanesian. To create a unitary system, Gordon created and
promoted a hierarchical order similar to that found in the traditions of the
East Fijians, this included the creation of the Great Council of Chiefs. The
system of governance under the Great Council of Chiefs was exclusive to the
Fijians.
Part of preserving the
Fijian way of life meant that Fijians were not to work for the colonialist,
thus, Indian labour was imported and so too a very small number of Melanesian
slaves. Colonial legislature allowed for representation of the different ethnic
groups and it was here that the concept of racially-designated seats was first
implemented in Fiji. Seats were reserved for Europeans, Indo-Fijians and
Fijians; who were appointed upon the recommendations of the Great Council of
Chiefs.
Gordon’s intentions to protect Fijians from Europeans and
colonial exploitation began the ‘doctrine of Fijian
paramountcy,’[4] which effectively meant
Fijian interests and customary practices were inalienable. At first this was
directed against the European settlers and colonisers, however, it soon turned
towards Indo-Fijians. Due to the protective measures surrounding Fijians, which
prohibited them from working, Indo-Fijians had come to dominate the economic and
commercial sector. This led Fijians to perceive Indo-Fijians as an advantaged
group.
By the time Independence
was being contemplated, Indo-Fijians outnumbered Fijians, and combined with the
Indo-Fijian economic domination, Fijians felt threatened and believed that if
Indo-Fijians were to gain political domination too then they would threaten the
‘doctrine of Fijian paramountcy.’ This caused a strong push for the
protection of Fijian rights and interests which resulted in the first Fijian
Constitution of 1970, which though it made attempts to create an equally
representative system, continued to segregate the indigenous and non-indigenous
Fijians through its ethnically- based electoral system.
The second
version of the Fijian Constitution came in 1990 after the military coups of
1987. The 1987 military coups led by Lieutenant Sitiveni Rabuka, a Fijian,
occurred after The Alliance, a recognised ‘Fijian’ party as opposed
to Indo-Fijian, lost power for the first time since Independence to a coalition,
the majority of whose members were Indo-Fijians. In leading the coups, Rabuka
expressed his objectives as ‘maintaining Fijian
supremacy.’[5]
The 1990 Constitution
formed by Rabuka created a Fijian Republic and designated a smaller than
proportionate number of lower house seats to Indo-Fijians while raising the
number of Fijian seats. The 1990 Constitution did, however, provide for a
Constitutional review and Rabuka followed through by appointing a Constitutional
Review Committee whose findings led to the creation of the 1997 Fijian
Constitution.
In 2000 there was another coup, this time led by Fijian
businessman George Speight. The 2000 coup followed the election for the first
time of an Indo-Fijian party to Government and an Indo-Fijian Prime Minister,
Mahendra Chaudhry. In staging the coup and taking the Government hostage,
Speight claimed his objectives were the same as that of Rabuka before him; to
protect Fijian interests.
Commodore Frank Bainimarama initiated a
military intervention and in order to gain the release of the hostages,
Bainimarama agreed to Speight’s demand to invalidate the 1997
Constitution. After Speight’s capture an interim Government was set-up by
the military and the creation of a new Constitution was discussed. However,
following the Fijian Court of Appeals decision in
The Republic of Fiji v Prasad [2001]
FJCA 24, the 1997 Constitution was declared to have been invalidly abrogated and
therefore still in force.
2. Law: What is
Racial Discrimination?
Article 38(1) of the Statute of the International Court of Justice (ICJ)[6] lists the body of international law that the ICJ has jurisdiction over. These have become universally recognised as a basic constitution of all the sources of international law.[7] Article 38(1) of the Statute of the ICJ states:
1. The Court...shall apply:
a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
b. international custom, as evidence of a general practice accepted as law;
c. the general principles of law recognized by civilized nations;
d. subject to the provisions of Article 59[8], judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.
Professor Ian Brownlie, a leading international law expert, discussed Article 38 as forming a hierarchy of ‘sources’ in terms of importance as opposed to authority. Thus, (a) and (b) were the most important sources of international law.[9] Hence, human rights exist in international law primarily under:
a. treaties or
b. as part of international customary law
The right
to racial non-discrimination is recognized under both instances as will be
illustrated.
Under
International Conventions
Racial discrimination is
said to be one of the main reasons modern human rights discourse was instigated.
Following World War 2 and Hitler’s terrifying pursuit of the Jews in
Europe, the world realized that something had to be done to prevent such
atrocities from re-occurring. Thus, the United Nations (UN) Commission on Human
Rights was created and it proceeded to generate an ‘International Bill of
Rights.’ This would consist of the UN Declaration of Human Rights, which
was drafted in 1948, and subsequent
Conventions.[10]
UN declarations are not
binding on any States and are merely persuasive and serve as a proclamation of
the united values of the UN member states. UN conventions or treaties on the
other hand can be binding on those states that choose to ratify it. Ratifying a
convention requires the State to adopt the convention and have it reflected in
their domestic legislation. Conventions cannot be binding on any State unless
ratified; otherwise it would be a breach of the State’s sovereignty. In
ratifying conventions, however, States retain the right to make declarations and
reservations.
The foremost international convention concerned with racial
discrimination is the UN International Convention on the Elimination of All
Forms of Racial Discrimination 1965 (hereafter “CERD”). CERD has a
general approach to racial discrimination and as its preamble states,
‘solemnly affirms the necessity of speedily eliminating racial
discrimination in all its forms and
manifestations and of securing understanding of and respect for the
dignity of the human person.’
In Article 1(1) of CERD, racial
discrimination is defined as:
...Any distinction, exclusion, restriction or preference based on race colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment, or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.
There
are four things to be noted here. Firstly, the term ‘racial’ is
defined broadly to cover individuals with shared physical attributes as well as
common ancestry. Second, discrimination involves
State action that has the
‘purpose or effect’ of
being discriminatory. Therefore, regardless of intentions, an act is racially
discriminatory if it has that effect.[11]
Thirdly, to amount to racial discrimination individuals must find that
they’re deprived of certain rights
due to their race. Fourth, not
‘any distinction’ is prohibited but only that which is unreasonable
and arbitrary. This has been the general consensus on subsequent interpretations
of the phrase ‘any distinction’ and was confirmed in the
Costa Rican Naturalization
Case.[12]International cases such as
Zwaan de Varies v The Netherlands and
Simunek, Hastings, Tuzilova and Prochazka v
The Czech
Republic[13]
though specifically concerned
with Article 26 of the International Covenant on Civil and Political
Rights 1976, can also be used as
authorities on the definition of racial discrimination in Article 1(1) of CERD
and more specifically the meaning of ‘any distinction’ in Article
1(1).
Articles 1(2)(3) of CERD
qualify Article 1(1) by making an exception to State laws concerning
citizenship. Article 1(4) makes a more contentious exception to the definition
of racial discrimination by stating:
Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided, however, that such measures do not, as a consequence, lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken, have been achieved.
Thus,
‘affirmative action’ is a recognised exception to racial
discrimination so long as it is necessary, does not lead to separatism, and is
conducted only for the limited required period.
Therefore, in determining
whether an act is racially discriminatory there are four basic steps to take or
questions to ask:
i. Does the act make a distinction based on race?
ii. Does the distinction impair the exercise of a fundamental human right or freedom?
iii. Is the distinction unreasonable or arbitrary?
iv. Are there any relevant reservations or declarations to be considered?[14]
Under International Customary Law
International customary
law is defined as:
Law, which has evolved from practice and customs of states. Customary international law is regarded as a foundation of international law. State practice may give rise to customary international law if it fulfils certain criteria. The practice must be consistent and widely adopted by states; there must be ‘duration of practice,’ although the length of time may vary; and the practice must be opinio juris (regarded as obligatory by states).[15]
In
the Columbian-Peruvian Asylum
Case[16]
the ICJ stated that to prove customary law the party would have to
‘prove that the rule invoked by it is in accordance with a constant and
uniform usage practiced by the states in
question...’[17] Thus, for a practice to
be customary there has to be evidence of uniform and general practice. The
North Sea Continental Shelf
Cases[18]
goes further in stating that:
Not only must the acts concerned amount to a settled practice, but they must also be such, or be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it. The need for such a belief, or, the existence of a subjective element, is implicit in the very notion of the opinio juris sive necessitates.’[19]
Hence, not only must there be general practice of certain acts but States
must feel a legal obligation to practice these acts for them to be considered
customary law.
Thus, to amount to customary law, a general practice has
to be acknowledged as ‘law’ by a sufficient number of states. States
can acknowledge this through:
i) International Court decisions (this is more persuasive as International Courts do not constitute State practice)
ii) Various UN resolutions/declarations stating it as Customary law
iii) Official statements and actions by States declaring they consider it part of customary law
iv) National Court decisions affirming certain rights as customary law
v) Expert research and findings that identify a right as part of customary international law (this illustrates that a sufficient number of States accept a general practice as law)[20]
The most significant
feature of customary law is that it is binding on all parties whether
they’re accepting of it as a legal standard or not. Thus, even if a State
refuses to ratify a treaty, which embodies recognized customary law it still
remains bound by that customary law. This is confirmed in Article 43 of the
Vienna Convention on the Law of Treaties 1969 which states that the denunciation
of a treaty ‘shall not in anyway impair the duty of any State to fulfill
any obligation embodied in the treaty to which it would be subject under
international law independently of the treaty.’
Under the body of
evidence required to establish customary law, the right against racial
non-discrimination qualifies as customary law. Firstly, some academics believe
that the human rights contained in the UN Charter 1945 and the Universal
Declaration of Human Rights 1948 have became widespread State practice and
opinio juris and should, therefore, be
considered as customary law.[21] This has been
confirmed by the ICJ in the Legal Consequences
for States of the Continued Presence of South Africa in Namibia (South West
Africa) Notwithstanding Security Council Resolution 276
(1970)[22]
where the Court stated that the ‘denial (by South Africa) of
fundamental human rights is a flagrant violation of the purposes and the
principles of the Charter.’[23] The ICJ
went further in United States Diplomatic and
Consular Staff in
Tehran[24]
to say that, specific to this case, a breach of freedom was not only
against the principles of the Charter but ‘the fundamental principles
enunciated in the Universal Declaration of Human
Rights.'[25]
Several national cases
also confirm that human rights in the Charter and Universal Declaration are
customary law. In Filartiga,
Rodriguez-Fernandez v
Wilkinson[26]
a Federal US District Court cited several sources of international law,
including the Universal Declaration, in making its decision. The Court found
these instruments, ‘indicative of the customs and usages of civilized
nations.’[27]
The UK case of
Ahmad Inner London Education
Authority[28]
specifically illustrated that the human rights contained in the UN Charter were
binding regardless of State denunciation. In this case, Justice Scarman upon
studying the obligations the UK had under the UN Charter stated:
...It is no longer possible to argue that because of the international treaty obligations of the United Kingdom do not become law unless enacted by Parliament our courts pay no regard to our international obligations (rather,) they will interpret statutory language and apply common law principles, wherever possible, so as to reach a conclusion consistent with our international obligations.[29]
That
the human rights in the UN Charter is considered customary law is also
illustrated by non-member states’ behavior such as that of the former East
and West Germany who had accepted the principles of the Charter prior to their
UN membership.[30] The duty of States to comply
with the UN Charter is also illustrated by UN resolutions in times of conflict,
for example in the prolonged dispute between Israel and Palestine.
[31]
The widespread consensus
that human rights in the Universal Declaration are customary law was documented
in ‘A Survey of International
Law’[32] prepared by the UN
Secretary-General for the International Law Commission in which it was stated
that the Declaration had become a yardstick by which to measure human rights
standards and observations and that it had been re-affirmed in a series of other
instruments. The report concluded that:
Many national constitutions adopted since 1948 embody an endorsement of the Declaration or reflect its provisions, and numerous conventions include or refer to its articles. Besides being incorporated in acts of national legislation and cited before national tribunals, it has been used in United Nations resolutions and declarations, and in the constitutive instruments of international organizations.’[33]
Hence,
there is a prevalent belief amongst States that the Universal Declaration on
Human Rights and the human rights contained in the UN Charter are customary law.
The right to racial non-discrimination is contained in Article 55(c) of
the UN Charter, which reads:
With a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, the United Nations shall promote...(c) universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language or religion.
Article
2 of the Universal Declaration contains the right to racial non-discrimination
in the following form:
Everyone is entitled to all the rights and freedoms set forth in this declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.
Thus,
if the human rights contained in the Charter and the Universal Declaration are
customary law then it follows that the right to racial non-discrimination is
also customary law.
The next question becomes, what is the scope of the
right to racial non-discrimination as customary law. In following this
paper’s argument thus far, at a minimum, the scope and standard of the
right to racial non-discrimination is as it appears in the UN Charter and the
Universal Declaration, but there is some argument that CERD is in fact a
codification of the customary right to racial non-discrimination and, thus, CERD
sets the most appropriate standards for this human right in customary
law.[34] However, this argument is beyond the
scope of this paper as it concerns the relationship between international
conventions in-general and customary law. Hence, for the purposes of this paper,
the extent of the right to racial non-discrimination exists in customary law to
the extent in which it exists in the UN Charter and the Universal Declaration of
Human Rights.
3. Applying the Law to the Facts: Do aspects of Fiji’s Parliamentary and Electoral Systems amount to Racial Discrimination
The
question to be determined here is whether aspects of Fiji’s parliamentary
and electoral systems amount to racial discrimination. The aspects to be
assessed are:
A Fiji’s ethnically-based House of Representatives electoral system and
B The protection of Fijian interests in the Senate
First this paper will
assess whether the above aspects of Fiji’s parliamentary and electoral
systems violate CERD, which is the foremost international convention concerning
racial discrimination. Secondly, this paper will assess whether the mentioned
aspects of Fiji’s electoral and parliamentary systems violate
international customary
law.
A.
Is Fiji’s ethnically-based electoral system racially discriminatory under the International Convention of Elimination of All Forms of Racial Discrimination (CERD)?
Fiji accessioned CERD in
1973. On accessioning CERD, Fiji made several reservations and declarations
concerning Articles 2,3,4,5,6,15 and 20.
In order to determine whether
Fiji’s ethnically-based electoral system amounts to racial discrimination
under Article 1(1) of CERD, the five questions identified previously, need to be
asked.
i. Does Fiji’s ethnically-based electoral system make distinctions on the basis of race?
Yes, Fiji’s
electoral system has a communal voting system and racially-designated seats. The
current Fijian Constitution establishes that the House of Representatives is to
comprise of 75 members, 46 of whom are elected by ethnic rolls and 25 by open
rolls. The 25 open seats are available for candidacy by any ethnic group. As to
the 46 communal seats, the break down is as follows: 23 Fijians, 19 Indians, 1
Rotumans and 3 others.
ii. Does this distinction have the purpose or effect of impairing the exercise of a fundamental human right or freedom?
Equal political
participation is recognized as a fundamental freedom by a number of
international conventions and declarations, including Article 21 of the
Universal Declaration of Human Rights and Article 25 of the International
Covenant of Civil and Political Rights 1966. This is further re-iterated in
Article 5 of CERD, which states that:
...State parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee to everyone, without distinction as to race, colour or national or ethnic origin, to equality before the law, notably in the enjoyment of...5(c) political rights, in particular the rights to participate in elections- to vote and to stand for election- on the basis of universal and equal suffrage, to take part in Government.
The numerical
distribution of seats in Fiji’s ethnically-based electoral system
effectively inhibits equal participation in the political process. Of the
racially-designated seats, Fijians are allocated 23 seats, Indians 19, Rotumans
1 and Others 3. Thus, non-indigenous Fijians cannot contest the same number of
electorates nor vote in the same number of electorates as Fijians. Further,
though these allocations may be proportional to the various ethnic populations,
the nature of Fijian party politics means that Fijians are effectively given
preference as to the formation of Government, at the disadvantage of all other
ethnic groups.
Due to the implementation of an ethnically-based electoral
system since colonialism and the ethnic friction in Fiji over the years, Fijian
party politics is split along racial lines, especially between the two largest
ethnic groups; the Fijians and the Indians. This reality means that Fiji’s
electoral system gives Fijian parties and, therefore, Fijian individuals (either
directly or through their representatives) a higher probability of participating
in Government than Indo-Fijian individuals. Hence, the Government in Fiji
usually consists of Fijians while the Opposition of Indians. This means the
political right of Indians and other minority ethnicities to partake in
Government is rendered unequal through the operation of Fiji’s electoral
system.
Thus, the distinction made by Fiji’s electoral system
through its racially-designated House of Representative seats results in;
firstly, the impairment of non-indigenous Fijians rights to stand for elections
and vote in universal and equal suffrage as a larger number of seats are
reserved for Fijian candidates and voters than non-indigenous ones. Hence,
non-indigenous persons cannot stand for elections in as many electorates as
Fijians and in voting along racial lines, non-indigenous persons do not have the
same number of representatives as Fijians.
Secondly, Fiji’s
ethnically-based electoral system impairs non-indigenous Fijians’ right to
partake in Government. Communal seats have ensured that to get votes candidates
need to endear themselves to their electorate, hence, resulting in race-specific
policy. They have also meant that political parties are formed along race lines
to capture electorates and with 50% of communal seats allocated to Fijians,
Fijian parties are most likely to form Government. Since these parties create
policies along racial lines, it follows that if a Fijian party is in Government
then it strongly represents Fijian interests, thus, Indian Fijians and other
non-indigenous groups are alienated from participating in Government.
iii. Are these distinctions unreasonable and arbitrary?
Following Fiji’s
submission in 2002 of its 6-15th
Periodic Report[35] to the Committee on the
Elimination of Racial Discrimination, Fiji’s representative Mr Mataitoga
was questioned by the Committee as to reasons for Fiji’s ethnically-based
electoral system. Mr Mataitoga stated that, ‘The Government had many
reasons to maintain the electoral system currently in place, since it was aware
that the primary objective was to determine the political framework that was
most suitable to the Fijian context in order to enable all ethnic and religious
communities to co-exist in peace.’[36]
Mr Mataitoga then drew the
Committee’s attention to the ‘very detailed report’ about
Fiji’s electoral system that had been distributed to them. The
‘detailed report’ refers to Fiji’s
6-15th periodic report where at
paragraph 115 it states, ‘This system of communal voting was established
in colonial times and was continued in the 1970 Independence Constitution,
through the 1990 Constitution and the 1997 Constitution.’ In a footnote to
paragraph 115 the report refers the reader to Fiji’s Core
Document[37] for a description of the sharing
of seats in the House of Representatives on a communal basis. The Core Document
discusses reasons for Fiji’s ethnically-based electoral system at
Independence but fails to articulate any reasons for its maintenance of the
system, 30 or so years later. This leads to the assumption that the
Government’s maintenance of racially-designated seats for the House of
Representatives are for much the same reasons as those articulated by Fiji at
Independence.
The reasons for
Fiji’s ethnically-based electoral system at Independence were; firstly,
fear that an open electoral system may result in extended power of the
country’s economically dominant ethnic group, the Indians, and that this
would result in the marginalism of other groups, especially the Fijians.
Secondly, fear that the so-called ‘doctrine of Fijian paramountcy,’
which makes Fijian land interests and customary practice inalienable, would be
abolished.
Therefore, the question is; are the racially motivated
provisions of Fiji’s electoral system justified? That is, are they valid
affirmative action or are they unreasonable and arbitrary. The test for what is
‘unreasonable and arbitrary’ is the proportionality
test[38], which operates through the
determination of two important questions:
a. Are the aims legitimate
b. Is differentiation appropriate to achieve those aims[39]
In
this case the Fijian Government’s aim as expressed by Mr Mataitoga is to
allow all ethnicities within Fiji to exist in peace by ensuring equal
representation and protecting Fijian land rights and customs. This is clearly a
legitimate aim, however, the second question is the contentious one. Is the
differentiation appropriate to achieve this aim. In other words, are
ethnically-based electoral seats an appropriate way to create a more equal
society within Fiji and protect indigenous rights?
Changes in Fiji since
Independence have meant that Fijians are now the largest ethnic group in Fiji.
Thus, racially-designated seats only consolidate Fijian dominance in the
political system. Instead of creating a fairer system where there is no
dominance by one group as was initially intended, the racially-designated seats
only serve to protect Fijian political dominance. Also, the nature of Fijian
politics means that Fijian representatives are most likely to form Government at
the exclusion of other ethnic groups. Thus, the racially-designated electoral
system is not proportional to the aim of equal representation of all Fijian
ethnicities and can, therefore, be seen as unreasonable and
arbitrary.
Though the protection of Fijian land rights and customs is a
legitimate aim, the Fijian Constitution already protects indigenous traditions.
In Chapter 2 of the Constitution, which establishes principles for the conduct
of government, Section 6(j) states:
In those negotiations, the paramountcy of Fijian interests as a protective principle continues to apply, so as to ensure that the interests of Fijian community are not subordinated to the interests of other communities.
This
principle is applied subject to other Constitutional provisions and law and
there are several such Constitutional provisions and legislation which protect
Fijian interests. In law, Fijian interests are protected by the Native Title
Land Trust Act 1941 (as amended in 2002) under which 80% of Fiji’s land
mass is owned under native title.[40] As to
Constitutional provisions, Section 38(8) states that law or administrative
actions may limit other rights and freedoms established in the same section for
the purposes of protecting Fijian customs, especially relating to land and
fishing rights. Further, Section 186 of the Constitution states in relation to
parliamentary legislation that, ‘Parliament must make provision for the
application of customary laws for dispute resolution in accordance with
traditional processes’ and have regard to indigenous customs when doing
so. Fijian interests are further protected by the role of the Great Council of
Chiefs, which is recognized under Section 116 of the Constitution.
Thus, Fijian interests are
well protected in domestic law to an extent where enduring political dominance
is not required for further protection; therefore, ethnically-designated seats
in their effect can be seen as a disproportionate means to the objective of
protecting indigenous interests. This renders Fiji’s ethnically-designated
electoral system unreasonable and arbitrary.
Fiji’s
racially-designated electoral system though legitimate in its aim, of creating a
equal and harmonious society within Fiji and amongst its different ethnic
groups, by ensuring equal political participation and protection of indigenous
rights, has proven to be a disproportionate measure to the aim and, therefore,
an unreasonable and arbitrary measure. Thus, differentiation in the form of a
racially-designated electoral system in Fiji’s case is not justifiable and
is, on considerations made so far, racially discriminatory.
The
conclusions drawn by this paper as to the racially discriminatory nature of
Fiji’s electoral system were also expressed by the Committee on the
Elimination of Racial Discrimination at Fiji’s submission of its
10-15th periodic. The appointed
Rapporteur for Fiji, Ms January Bardill reported concern that the
ethnically-designated seats in Fiji’s electoral system were racially
discriminatory in effect if not intent.[41] At
the same meeting a member of the Committee Mr Tang Chengyuan recommended that in
order to create equality in Fiji, Indians should be given more political power
whilst Fijians should be helped to raise their standard of living. Mr Chengyuan
further stated that it was not possible to claim that there is no racial
discrimination in Fiji.
Ms January Bardill
further stated, at a continuation of the review, that to enable equal power
sharing among the different ethnicities in Fiji, that Fiji should allow greater
participation by non-indigenous groups in the decision-making process. Ms
Bardill stated that she feared that politicisation of ethnicity in Fiji
‘would re-enforce the tendency towards ethnic
hegemony.’[42] The concluding
observations on Fiji’s 10-15th
periodic reports[43] by the Committee of
Elimination of Racial Discriminations confirmed Ms Bardill’s concerns,
stating that it was particularly concerned with Fiji’s reservations to
CERD including that to Article 5 of CERD and recommended that Fiji withdraw its
reservations. The Committee also encouraged Fiji to ‘address perceptions
that the State party continues to politicise culture, identity and ethnicity in
order to maintain indigenous Fijian
hegemony.’[44] None of the
recommendations made by the Committee are
binding.[45]
Fiji submitted its 16th
periodic report in June of this year. It is yet to be considered by the
Committee of Elimination of All forms of Racial Discrimination.
iv. Are there any relevant reservations or declarations to be considered?
On considerations made so
far, Fiji’s electoral system would amount to racial discrimination under
CERD. However, a final consideration has to be given to any relevant
reservations or declarations made to CERD by Fiji.
In ratifying CERD,
Fiji made a reservation to Article 5(c) of CERD stating:
To the extent, if any, that any law relating to elections in Fiji may not fulfill the obligations referred to in Article 5(c)...the Government of Fiji reserves the right not to implement the aforementioned provisions of the Covenant.
Fiji’s
reservations to Article 5(c) is valid as it does not violate Article 20(2) of
CERD which states that; a reservation considered incompatible with the
objectives of the Convention will not be permitted nor a reservation that
inhibited the operation of the bodies established by the Convention. A
reservation was ‘considered incompatible or inhibitive if at least two
thirds of the States parties to this (the) Convention object to it.’ There
has been no such finding against the State of Fiji.
Fiji’s
reservation to Article 5(c) means that any finding of racial discrimination
against Fiji’s electoral system regarding political rights will be invalid
under Fiji’s ratification of CERD.
Is
Fiji’s ethnically-based electoral system racially discriminatory under
International Customary Law?
Fiji’s electoral
system can, however, be challenged as racially discriminatory under
international customary law. As previously stated, the exact standards of racial
discrimination under customary law are vague, but on the evidence that the
Universal Declaration of Human Rights and the human rights in the UN Charter are
considered international customary, at a minimum, the right to racial
non-discrimination exists as customary law under Article 55(c) of the UN Charter
and Article 2 of the Universal Declaration.
Article 2 of the Universal
Declaration states that everyone is entitled to the fundamental freedoms listed
within the Declaration without any distinction of race. One of the fundamental
freedoms contained within the Universal Declaration is that of political
participation under Article 21. Thus, under the Universal Declaration everyone
is entitled to political participation without discrimination as to
race.
If the effect, rather than merely the purpose, of Fiji’s
racially-based electoral system is considered, then non-Indigenous Fijians are
not afforded the equal right to participate in Government which would be a
violation of both Articles 2 and 21 of the Universal Declaration.
In
following this paper’s argument of the Universal Declaration being part of
customary law, a violation of Article 2 of this instrument means that
Fiji’s ethnically-based electoral system is racially-discriminatory under
customary law.
Under the UN Charter, Article 55(c) provides for the
respect of human rights and fundamental freedoms without distinctions as to
race. Although the UN Charter itself does not enlist what it considers to be
fundamental freedoms, it is fair to assume the same fundamental freedoms as
those stated in the Universal Declaration as the Universal Declaration was built
upon the Charter’s affirmation of faith in fundamental human rights. This
can be deduced from the Universal Declaration’s preamble.
Again,
political participation is a fundamental freedom under the Universal
Declaration; therefore, Article 55(c) can be re-stated as providing freedom of
political participation without distinction as to race. Upon this basis,
Fiji’s ethnically-based electoral system is in violation of Article 55(c)
of the UN Charter in its operational effect as it fails to respect
non-Indigenous Fijian rights to partake in Government.
As this paper has
argued, the human rights contained in the UN Charter are considered customary
law, therefore, Fiji’s ethnically-based electoral system in violating
Article 55(c) of the Charter, is racially discriminatory under international
customary law.
B.
Does the protection of Fijian interests in the Senate amount to racial discrimination?
Fiji’s
Senate is said to protect Fijian interests due to the role of the Great Council
of Chiefs. The Great Council of Chiefs is made up of traditional Fijian Chiefs
and several qualified commoners. The Fijian Constitution recognizes the Great
Council of Chiefs under Section 116 and the Council has several Constitutional
duties. They include, consulting with the Prime Minister to appoint the
President and advising the President on the appointment of 14 Senators. It must
be noted that the Fijian Senate only has the power to debate and delay
legislation.
Whether the Council’s role amounts to racial
discrimination will be considered first under CERD and then under international
customary law.
Does the protection of Fijian interests in the Senate amount to racial discrimination under the International Convention of Elimination of All Forms of Racial Discrimination (CERD)?
In order to determine
whether the protection of Fijian interests in the Senate amounts to racial
discrimination under Article 1(1) of CERD, the four main questions identified
previously need to be asked:
i. Does the protection of Fijian interests in the Senate system make distinctions on the basis of race?
Yes, because Fijian
interests are protected to the exclusion of other ethnicities.
This is
because the Great Council of Chiefs, which consists only of Fijians, advises the
Prime Minister as to the appointment of the President and then the President as
to appointment of 14 of the 32 Senators in the upper house. Since the Great
Council of Chiefs exists under the Fijian Affairs Act, its role is to represent
Fijian interests, therefore, logically, in advising on the appointment of the
President and Senators, the Council will recommend candidates that best
represent Fijian interests. No similar considerations are afforded to other
ethnic groups. Thus, Fijian interests are furthered and protected to the
exclusion of other ethnicities, a clear distinction on the basis of
race.
ii. Does the distinction have the purpose or effect of impairing the exercise of a fundamental right or freedom?
In advising the
appointment of the President and 14 Senators of the upper house, the Great
Council of Chiefs is most certain to appoint Fijians, thus, impairing
non-Indigenous Fijians’ right to equal political participation under
Article 5(c) of CERD.
Also, due to the lower house electoral system, the
Government is likely to be led by Fijians, thus, the 9 Senators appointed by the
Prime Minister are likely to be Fijians, therefore, in a upper house of 32
Senators, 23 of those Senators are most likely Fijians. This also impairs
non-Indigenous Fijians’ political rights, in this instance, their right to
equal political representation.
iii. Are these distinctions unreasonable and arbitrary?
To determine whether the
protection of Fijian interests through the appointment of the President and 14
Senators on the advise of the Great Council of Chiefs is unreasonable or
arbitrary, the proportionality test must be used. Therefore, are the aims of
this act/s legitimate and is differentiation appropriate to achieve those
aims?[46]
The main reason for the
Great Council of Chiefs’ role in appointing the President and Senators is
the protection of Fijian rights. Prima facie, protecting Fijian or indigenous
rights is a legitimate aim. However, is this differentiation appropriate to
protect Fijian rights?
Fijian land rights and customs are sufficiently
protected by the principle established in Chapter 2, Section 6(j) of the Fijian
Constitution, which states that in Government negotiations, Fijian interests are
to remain paramount. This principle is applied subject to other Constitutional
provisions and law and there are several such Constitutional provisions and
legislation which protect Fijian interests. In law, Fijian interests are
protected by the Native Title Land Trust Act 1941 (as amended in 2002) under
which 80% of Fiji’s land mass is owned under native
title.[47] As to Constitutional provisions,
Section 38(8) states that law or administrative actions may limit other rights
and freedoms established in the same section for the purposes of protecting
Fijian customs, especially relating to land and fishing rights. Further, Section
186 of the Constitution states in relation to parliamentary legislation that,
‘Parliament must make provision for the application of customary laws for
dispute resolution in accordance with traditional processes’ and have
regard to indigenous customs when doing so.
Therefore, the role of the
Great Council of Chiefs in appointing the President and Senators is in excess of
the aim to protect Fijian interests. Thus, the protection of Fijian interests in
the Senate is unreasonable and arbitrary and in being so, amounts to racial
discrimination under Article 1(1) of CERD subject to any relevant reservation by
Fiji.
iv. Are there any relevant reservations or declarations to be considered?
Final consideration must
be given to Fiji’s reservations to CERD. Again, Article 5(c) is not
recognized by Fiji in relation to its electoral process. Therefore, under
Fiji’s ratification of CERD, violations of Article 5(c) are acceptable;
hence, the protection of Fijian interests in the Senate does not amount to
racial discrimination under Fiji’s ratification of CERD.
Does the protection of Fijian interests in the Senate amount to racial discrimination under Customary Law?
In following this
paper’s argument that the Universal Declaration of Human Rights and the
human rights in the UN Charter amount to customary law, the protection of Fijian
interests in the Senate would be a violation of customary law if it breaches
Article 2 of the Declaration and Article 55(c) of the Charter.
The facts
are that in advising the appointment of the President and 14 Senators of the
upper house, the Great Council of Chiefs is most certain to appoint Fijians,
thus, impairing non-Indigenous Fijians’ right to equal political
participation. Also, due to the lower house electoral system, the Government is
likely to be led by Fijians, thus, the 9 Senators appointed by the Prime
Minister are likely to be Fijians, therefore, in a upper house of 32 Senators,
23 of the Senators are most likely Fijians. This further impairs non-Indigenous
Fijians’ political rights, in this instance, their right to equal
political representation.
The right to equal political participation and
representation is recognized as a fundamental freedom in Article 21 of the
Universal Declaration. Therefore, its denial on the basis of race is a clear
violation of Article 2 of the Universal Declaration, which prohibits the denial
of fundamental freedoms on the distinction of race. Hence, by breaching the
Universal Declaration, the protection of Fijian interests in the Senate is in
violation of customary international law against
racial-discrimination.
Under the UN Charter, Article 55(c) provides for
the respect of human rights and fundamental freedoms without distinctions as to
race. Assuming the same fundamental freedoms as those stated in the Universal
Declaration, as the Declaration was built upon the Charter’s affirmation
of faith in fundamental human rights, the protection of Fijian interests in the
Senate would violate Article 55(c), hence, a violation of the right to racial
non-discrimination under customary law.
4. CONCLUSION
Racial non-discrimination
is recognized in international law through both treaties and customary law.
Fiji’s ethnically-based electoral system for the House of
Representatives would amount to racial discrimination, as defined in Article
1(1) of the International Convention on the Elimination of all Forms of Racial
Discrimination, but for Fiji’s reservation to Article 5(c). However, on
the argument that the human rights within the UN Charter and the Universal
Declaration of Human Rights have become recognised as international customary
law, Fiji’s ethnically-based electoral system is in violation of the right
to racial non-discrimination clauses in both the Charter (Article 55(c)), and
the Universal Declaration (Article 2). Hence, Fiji’s electoral system
would amount to racial discrimination under customary law.
The Fijian
Senate’s protection of Fijian interests, through the Great Council of
Chief’s advice on appointment of the President and 14 Senators would also
amount to racial discrimination under CERD but for Fiji’s reservation to
Article 5(c) of CERD. The protection of Fijian interests in the Senate does,
however, violate Articles 2 and 55(c) of the Universal Declaration of Human
Rights and the UN Charter, respectively. Therefore, on the argument that the
human rights within these instruments amount to international customary law, the
protection of Fijian interests in the Senate amounts to racial discrimination
under international customary law.
[1] HRI/CORE/1/Add.122 (25 November 2002)
[2] ibid
[3] Lawson, S “Nationalism versus Constitutionalism in Fiji” (2004) 10(4) Nations and Nationalism 519, 524 ELECTRONIC Expanded Academic ASAP (6 May 2006)
[4] Id, 526
[5] Id, 528
[6]
Statute of the International Court of
Justice, 26 June 1945, 59 Stat. 1005, T.S.
993
[7]
Martin, Francisco Forrest et al International
Human Rights Law and Practice (The Hague, The Netherlands: Kluwer Law
International, 1997) 26
[8] Article 59 states: The decision of the Court has no binding force except between the parties and in respect of that particular case.
[9]
Bronlie, Ian, Principles of Public
International Law, 1990, 3-4 quoted in Martin, Francisco Forrest et al
International Human Rights Law and Practice
(The Hague, The Netherlands: Kluwer Law International, 1997)
26
[10] Williams, S.A & de Mestral, A.LC An Introduction to International Law (Toronto: Butterworths, 1987) 306-321
[11]
Simunek, Hastings, Tuzilova and Prochazka v.
The Czech Republic, Communication No. 516/1992 (19 July 1995), U.N. Doc.
CCPR/C/54/D/516/1992
(1995)
[12]
Proposed Amendments to the Naturalization
Provisions of the Constitution of Costa Rica, Advisory Opinion OC-4/84
(19 July 1984), Inter-Amer. Ct. H.R. (Ser. A) No. 4 (1984)
[13] F. H. Zwaan-de Vries v. the Netherlands, Communication No. 182/1984 (9 April 1987), U.N. Doc. Supp. o. 40 (A/42/40) at 160 (1987); Simunek, Hastings, Tuzilova and Prochazka v. The Czech Republic, above n 11
[14]Proposed
Amendments to the Naturalization Provisions of the Constitution of Costa Rica,
Advisory, above n 12; The North Sea
Continental Shelf Cases (FRG/Den.; FRG/Neth.) 1969 ICJ Rep. 3;
Belgium Linguistics Case, 6 Eur. Ct.
H.R. (Ser. A) (1968)
[15] Butterworths, Concise Australian Legal Dictionary 2nd Ed, ‘Customary international law’ [110]
[16]
Columbian-Peruvian Asylum Case 1950 ICJ
Rep.
266
[17]
Id,
276
[18]
The North Sea Continental Shelf Cases
(FRG/Den.; FRG/Neth.) 1969 ICJ Rep. 3
[19] Id, 44
[20]Military and Paramilitary Activities in and against Nicaragua Merits 1986 ICJ Rep. 14; Legal Consequences for States of the continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970) 1971 ICJ Rep. 16; Cassese, A, ‘The Geneva Protocols of 1977 on the Humanitarian Law of Armed Conflict and Customary International Law’ (1984) 3 UCLA Pac. Basin LJ 55, 67; Schachter, Oscar International Law in Theory and Practice (The Netherlands: Martinus Nijhoff Publishers, 1991) 335-342
[21]Sohn,
L. B, The New International Law: Protection of
the Rights of Individuals Rather Than States 32 AM.U.L Rev. 1 (1982)
quoted in Martin, Francisco Forrest et al
International Human Rights Law and Practice
(The Hague, The Netherlands: Kluwer Law International, 1997) 26;
Schachter, Oscar, ‘International Law Implications of U.S Human Rights
Policies’ (1978) 24
NYL School of Law Review 63, 68 quoted
in Martin, Francisco Forrest et al
International Human Rights Law and Practice
(The Hague, The Netherlands: Kluwer Law International, 1997)
26
[22]
Above, n
20
[23]Legal
Consequences for States of the Continued Presence of South Africa in Namibia
(South West Africa) Notwithstanding Security Council Resolution 276 (1970),
above n 20,
57
[24]
United States Diplomatic and Consular Staff in
Tehran 1980 ICJ Rep.
3
[25]
Id, 42
[26] Filartiga, Rodriguez-Fernandez v Wilkinson 1981 654 F. 2d
[27] Id, 797
[28] Ahmad Inner London Education Authority [1977] 3 WLR 396
[29] Id, 406
[30]
Czapliński, W,
“Sources of International Law in the Nicaragua Case” (1989) 38(1)
The International and Comparative Law
Quarterly, 151, 157Electronic JSTOR
(8 September
2006)
[31]
Ladah, Michael S, Ailouni, Suleiman I, “Mr Bush, What about Israel’s
defiance of UN Resolutions: An open letter to George Bush,”
Media Monitors Network (September 29
2002) < http://www.mediamonitors.net/michaelsladah&suleimaniajlouni1.html>
(8 September 2006)
[32] UN Doc. A/CN.4/245 (23 April 1971)
[33] Id, 196-197
[34] Sohn, L.B, ‘Generally accepted International rules’ (1986) 61 Wash. L. Rev. 1073, 1077-1078 quoted in Martin, Francisco Forrest et al International Human Rights Law and Practice (The Hague, The Netherlands: Kluwer Law International, 1997) 86
[35]
HRI/CORE/1/Add.122 (25
November2002)
[36]
CERD/C/SR.1567 (1July 2003) para 24
[37] HRI/CORE/1/Add.122 (25 November 2002)
[38]
Proposed Amendments to the Naturalization
Provisions of the Constitution of Costa Rica, Advisory Opinion OC-4/84
(19 July 1984), Inter-Amer. Ct. H.R. (Ser. A) No. 4
(1984)
[39]
Fredman, Sandra (ed), Discrimination and Human
Rights (New York: Oxford University Press, 2001) 30
[40] HRI/CORE/Add.122 (25 November 2002) para 58
[41] CERD/C/SR.1566 (17 March 2003) para 16
[42]
CERD/C/SR.1567 (1July 2003) para
29
[43]
CERD/C/62/CO/3 (2 June
2003)
[44]
Id, para
13
[45]
Ingles, J, Study on the Implementation of
Article 4 of the International Convention on the Elimination of All Forms of
Racial Discrimination, 1983, para 224 quoted in Meron, Theodor,
Human Rights and Humanitarian Norms as
Customary Law (New York: Oxford University Press, 1989), 22
[46] Fredman, Sandra (ed), Discrimination and Human Rights (New York: Oxford University Press, 2001), 30
[47] HRI/CORE/Add.122 (25 November 2002) para 58