Can Fiji’s Electoral System be Reformed within the Confines of the 2013 Constitution

Many of the major defects of Fiji’s present electoral system could be remedied if there were multiple constituencies.

Electoral Law Reform Commission chairman, Daniel Fatiaki is right that Fiji’s open list electoral system cannot be changed without also changing the 2013 constitution, but there are major changes that can potentially be made within the confines of that constitution (if amendment proves impossible). These could potentially address some of the main deficiencies of Fiji’s present electoral laws.

The major problems that have been identified with Fiji’s current open list proportional representation system include:

• The confusing Sudoku ballot paper which features only numbers, without names or party symbols.

• The ‘big man’ or ‘rock star’ syndrome which makes party fortunes determined by having a popular leader with nationwide appeal.

• The fact that some MPs can get elected with less votes than candidates who fail to get elected.

• The single national constituency of 55-members which ensures that MPs do not represent any specific geographical area within Fiji.

• The 5% nationwide threshold which discriminates against small parties and independent candidates.

• The low number of women elected.

Whether there exists scope under existing laws to address at least some of these issues depends on how one interprets the 2013 Constitution. The key electoral provision in that constitution says that ‘the election of members of Parliament is by a multi-member open list system of proportional representation, under which each voter has one vote, with each vote being of equal value, in a single national electoral roll comprising all the registered voters’ (S. 53 (1)). The 2013 Constitution also specifies that there shall be a 5% threshold (S. 53 (3)). Only parties that get more than 5% of the vote gain seats.

Since any change to the 2013 Constitution requires first a 75% majority in parliament and then subsequently the support of 75% of registered voters in a referendum, many observers have concluded that there can be no changes to the electoral law without addressing the entrenchment of the 2013 Constitution.

The draft constitution released by the Bainimarama government in March 2013 did not include the concluding phrase ‘in a single national electoral roll comprising all the registered voters’ (S. 50 (1)). That March 2013 draft provided for four districts with the Central Division electing 18 members, the Western Division electing 16 MPs, the Northern Division 7 members and the Eastern Division 4 members (S. 52 (2)). The phrase ‘single national electoral roll’ appeared for the first time in the final September 2013 Constitution.

The Multinational Observer Group (MOG) reports on the 2014, 2018 and 2022 elections all interpreted that phrase ‘single national roll’ to mean a single national constituency. Many within Fiji have assumed likewise. But the word ‘roll’ refers to the electoral roll or register. It is possible to have a single national roll, but multiple constituencies. Indeed, most countries that use proportional representation systems have multiple constituencies, rather than a single nationwide constituency. Nearly all countries that use open list systems have multiple constituencies, including Indonesia, Brazil, Bosnia-Herzegovina, Sri Lanka and Finland.

Open list systems are those where one has a choice of candidates on a party list whereas closed list systems give the voter only a choice of party [The former Attorney-General regularly cites Israel as having a single nationwide district, but Israel uses closed list system]. Only a very few places use open list arrangements in a single-national constituency, including the Netherlands, Slovakia and Kosovo. Many of the major defects of the present system could be addressed if there were multiple constituencies, although closed list systems are better equipped to promote the election of more women to parliaments because they can be more easily combined with legal requirements to alternate men and women on party lists (as in New Caledonia and French Polynesia). The MOG reports were reading history backwards. We need to revisit what happened in the past to understand why the 2013 Constitution required a ‘single national electoral roll’.

A central objective of the Bainimarama government was to get rid of separate communal or race-based rolls for ethnic Fijians, Fiji Indians, General Voters and Rotumans. This had been an issue of controversy since 1929, when Fiji Indian MPs were first elected on race-based electoral rolls (indigenous Fijians did not get the vote until 1963). It became an even bigger issue for A.D. Patel and the National Federation Party (NFP) in the 1960s. For A.D. Patel, this was considered symptomatic of colonial discrimination and the absence of an equal citizenship. The abolition of communal rolls became a key recommendation of Bainimarama’s ‘National Council for Building a Better Fiji’ (NCBBF) which assembled the ‘People’s Charter’ in 2008. When Bainimarama included among his ‘non-negotiable’ provisions for the new constitution in 2012 the ‘elimination of ethnic voting’, he meant by that the abolition of ethnic electorates (which many believed responsible for race-based voting).

The reasons for the eventual adoption of a single national constituency were related to the sequencing of decisions. First, the Bainimarama government rejected the Yash Ghai-led Fiji Constitutional Commission (FCC)’s draft which included provision for a closed list system (meaning one where voters are required to choose parties, not candidates). The then Attorney-General preferred a less party-centred electoral system. He wanted an electoral law likely to favour the incumbent government rather than the established political parties. The FCC’s closed list system was therefore dumped in favour of a more candidate-centred system.

There was subsequently some debate about whether to opt for a three or four constituency model (as proposed by the NCBBF’s Father David Arms). As Fiji moved towards the 2014 election, it became clear that the government’s strongest drawcard was the personal popularity of then military commander Frank Bainimarama. The major opposition party, the Soqosoqo Duavata ni Lewenivanua (SDL, later SODELPA), had a more localized support base, and would have benefitted from a multiple constituency model. In a three- or four constituency arrangement, Bainimarama’s strong personal vote would have been confined to only one constituency, enhancing the prospects of the opposition parties in the other constituencies.

Once the decision on a single constituency model had been made, the risk emerged of a huge and complex ballot paper. Fiji had an earlier experience with a highly complex split-format ballot paper used at the elections of 1999, 2001 and 2006, which had generated large shares of invalid (or ‘informal’) ballots. There was a preference for a simpler ballot paper. Hence, the Sudoku-style numbers-only ballot paper which first appears publicly as an addendum in the 2014 electoral decree. That style of ballot paper generated far fewer invalid votes, but far more erroneous votes because citizens mixed up the numbers of their favoured candidates.

It is the 2014 Electoral Act which sets out the electoral laws that have operated in Fiji at the 2014, 2018 and 2022 elections. In fact, even the Electoral Decree 2014 does not explicitly specify the need for a single national constituency. It makes no use whatsoever of either the word ‘constituency’ or electoral ‘district’, but it does require that there should be a ‘national candidates list’ (S. 36 (2)) and it does not require any sub-division of voter lists (S. 40) and it does require a ‘national results tally’ aggregating the polling station results (S. 102-103), all of which imply, without stating explicitly, the use of a single nationwide constituency. It also specifies a method of allocation of seats that makes no sense if there were multiple constituencies. But the Electoral Act 2014 is ordinary legislation which can be changed by act of parliament needing only a simple majority.

What difference would a multiple-constituency model make? Could this resolve some of the problems identified with Fiji’s present electoral system? If there were several constituencies, it would be possible also to modify the style of the ballot paper to show both candidate names and parties. All open list proportional systems, by definition, tally the results by party before identifying the most popular candidates within each party. It therefore makes sense to have the party, as well as the candidate, highly visible on the ballot paper. So Fiji could thereby get rid of the Sudoko ballot paper. A multiple constituency model would lessen the emphasis on having a high-profile national leader able to draw votes (what Daniel Fatiaki calls ‘the big man syndrome’). Candidates could be required to register only in one of several constituencies. A multiple constituency model would bring MPs closer to their voters so that they represent smaller geographical districts. Lastly, a 5% threshold in a multiple constituency model is not unusually high, internationally. It is only when this is applied across the whole country that it becomes such a formidable obstacle for smaller parties and independents. Minor parties or independents would be able to more easily reach the 5% threshold in smaller districts. The present single-constituency model also makes by-elections impossible except as a re-run of general elections.

What cannot be changed within the confines of the 2013 Constitution, as Daniel Fatiaki has rightly argued, is the electoral system itself. For better or worse, Fiji has repeatedly constitutionalized its electoral laws, although that has not prevented regular changes. Within the confines of the 2013 Constitution, it would not be possible to return to a single-member district electoral law of the type Fiji used under the 1970 or 1997 constitutions. Single-member district laws are, by definition, majoritarian, meaning that they are ‘winner takes all’ arrangements. If there is only one seat to be filled, it cannot be divided proportionally. In the view of many of us who argued against the sad and failed experiment with the alterative vote system in 1999, 2001 and 2006, Fiji is better off with a proportional representation system.

But there are many different types of proportional representation system. One option worth considering is a mixed member proportional system, as used in Germany, New Zealand and Lesotho. Under that kind of system, some members (often around half) can be elected from single-member districts; the others are chosen from party lists. Such systems can be run with two votes (a constituency and a party vote) but are preferably run with a single vote. An advantage of such a system is that it would allow political parties to draw into parliament respected or experienced national figures who may not have, or desire to cultivate, a strong constituency base. Such a system could not be introduced unless the 2013 Constitution were amended.

Aside from reading the text influenced by hindsight, the major reason why so many people inside and outside Fiji do not see the scope for electoral law reform within the 2013 Constitution is because of unfamiliarity with international variation in proportional representation systems. Other than the current electoral laws used in 2014, 2018 and 2022, Fiji has only had electoral arrangements that use single member districts (aside from a few multi-member block vote constituencies in 1992 and 1994). The 2013 constitution prohibits any reversion to those systems by using the phrase ‘multi-member open list system of proportional representation’, but that leaves the route open to Fiji adopting the more usual design of open list systems with multiple constituencies aimed at better balancing representativeness and accountability.

Jon Fraenkel is a Professor of Comparative Politics at Victoria University of Wellington, New Zealand.

This op-ad reflects the author’s personal view and not necessarily the editorial stance of fijivillage.