Fiji and the other former British Colonies adopted the
system of government known as the Westminster model.
Under this system, government is divided into three armsÑthe
Executive, the Parliament and the Judiciary. The Executive (Ministers
of Government making up Cabinet) formulates policies, initiates
laws and administers them; the Parliament enacts the laws to implement
those policies; and the Judiciary interprets those laws. Those
are the general functions of each arm.
The lawyers call this idea or principle the Doctrine of Separation
of Powers. The aim is to separate the different functions so that
each arm operates independently of each other but at the same time
accountable to each other. An example of how the system worksÑsuppose
the government of the day is being continually embarrassed by persistent
media reports of corruption of government officials. Cabinet decides
that government policy now is that no one is allowed to write about
the topic, effectively outlawing the right of free speech. Seems
like a pretty smart move but the problem is that this policy contravenes
the provisions of the Constitution. Nevertheless Parliament still
decide to pass a law to implement this policy. Now one of the newspapers
is being prosecuted for publishing an article on corruption of
the Prime Minister. The matter comes before the Court (the Judiciary)
and the highly paid lawyer for the newspaper argues that Parliament
has no power to pass that law because it is against the Constitution.
The Court accepts this argument and declares this law invalid so
no one has to follow it.
The Parliament has been pulled in line and made to follow its
own laws. The system has its in-built checks and balancesÑwhat
is known as accountability. This is one of the strengths of the
Westminster type of government.
When one looks at the Council as the governing body one
finds that some of the hallmarks and the strengths of the Westminster
model absent.
For example, the chiefs are not elected by popular vote across
the whole community. They are not accountable to the people in
a sense. The problem is further compounded by the fact that they
generally hold office for life. Only in very exceptional circumstances
are they removed from office. I know of only one case where a chief
has been removed before the end of his term by the District Officer
for alleged misconduct. Contrast this with the case of a Member
of Parliament. He stays in office until the next election and must
win his seat again to continue. If he does not perform then his
constituency votes him out.
Secondly, the Council decides on policy and effectively makes
the laws even though they are passed by the Fiji Parliament on
the Council's recommendation.
Thirdly, in some cases the Council has acted as the judiciary.
For example, in land dispute hearings two Council members sit with
the District Officer. In the days when the District Officer was
not a Rotuman he would sit with 2 assessors who act as interpreters
and jury. They are usually Rotumans who can speak English and are
not necessarily Council members. Nowadays, these two members are
usually Council members, (elected by the Council I presume) and
act more as adjudicators rather than assessors. To be fair to the
Council the lack of a proper system for resolution of disputes
is a major factor in this; for example, there is no Rotuma Lands
Commission despite the Rotuma Lands Act. There is no provision
in the present laws for an indigenous court system. The Magistrates
Court in Rotuma is only a second class Court and has very limited
jurisdiction so disputes which cannot be heard there have to be
heard in Fiji. Time and cost restraints may prevent travel to Fiji
so the dispute either remains unresolved or gets referred to the
Council for resolution.
To have a single non-elected body as the policy maker, lawmaker
and judge can be a very dangerous thing. It lends itself to possible
abuse of the powers vested in it and all the evils that go with
any authoritative regime that does not have the necessary checks
and balances.
Further, the Council's effectiveness as the pillar of our society
for its moral guidance and mutual respect is questionable. The
disagreements on who should be chief have divided the people and
their loyalties and respect. The end result is that this traditional
institution as an influential and uniting force is not as effective
as it used to be.
The functions of modern day government are quite complex. It requires
many years of education and experience. For example, studies have
shown that it requires nearly 30 years of schooling to read and
understand a piece of legislation. The complexities of finance
and commerce require no less. Of course, one can be advised by
experts when the occasion requires it. But this may not happen
because, firstly, to do so is a shameful admission that one does
not know--seen as a sign of weakness; and secondly, seeking advice
is often feared as loss of control and of being overtaken by the
ones with the knowledge--an attempt to usurp one's authority. Coupled
with a lack of experience, success and effectiveness will be a
difficult task indeed.
Do not get me wrong. I believe it is necessary to have a Council
of Chiefs. But their function is not to be the all-powerful body
performing all the functions of government. It is the body equivalent
to the head of state and perhaps that is its appropriate function--the
equivalent of the Crown or President, even the Upper House of Parliament.
The situation with the Bose Levu Vakaturaga of Fiji is probably
the one we should follow.
