The implications! What will happen is a party is deregistered
10 June, 2023, 3:00 pm
The recent suspension of FijiFirst (FF) as a political party and possible subsequent exclusion of its members from parliamentary proceedings have given rise to several questions regarding its implications for the functioning of parliament in Fiji.
What will happen if FF fails to comply with the financial disclosure requirements of the Political Parties Act 2013 and the Registrar of Political Parties has no choice but to deregister the party?
And what will happen to the MPs elected on the FF ticket? Answering these questions requires a close examination of the three legal instruments governing political parties, elections and the composition of Fiji’s legislature.
The requirement for by-elections
Section 64 of the Fijian constitution stipulates that in the event that a seat becomes vacant due to a party’s inability to replace an outgoing MP, a by-election must be held to fill the vacancy, unless the next general elections are due in six months.
In proportional representation (PR) systems like Fiji’s, by-elections are typically avoided.
In most jurisdictions that utilise PR systems, a two-step process is employed when addressing vacancies: (i) Filling the vacant position with another candidate from the same party list; and (ii) If no eligible candidate is available, resorting to an alternative method.
Taking New Zealand’s Mixed Member Proportional (MMP) system as an example, in the Closed Party List (CLPR) portion of the system, if a vacancy cannot be filled by any candidate from the same party list, the seat always remains unfilled until the next general election, regardless of when the vacancy occurs during the parliamentary term.
This approach effectively eliminates the need for by-elections in the PR component of the system.
It is, therefore rather problematic, and highly unusual, that the Fijian constitution requires by-elections to be held to fill vacancies especially given the fact that we have a multimember constituency that comprises the entire country.
This essentially means that conducting a by-election translates into a nationwide election, which effectively is a $20 million exercise in our case!
Effect of deregistration and possible resultant scenarios
Section 20 of the Political Parties Act 2013 gives further treatment to the issue of the effect of deregistration on MPs elected under a deregistered party.
According to this provision, elected MPs have two options; they can choose to become independent, or join another political party for the remainder of the parliamentary term.
The consequences of this choice within a PR system are significant, especially given their ability to change the entire electoral outcome, as is a possibility in the current context.
For instance, if FijiFirst was to be deregsitered and the People’s Alliance party (PAP) manages to induce seven FijiFirst MPs to join its ranks, the party would be able to form a majority government and would no longer need to rely on support from the National Federation Party (NFP) and the Social Democratic Liberal Party (SODELPA).
Another potential scenario is if all FF MPs become independents and align themselves with either SODELPA or NFP, allowing these parties to form a government on their own.
Alternatively, FijiFirst MPs could choose to become independents and engage in a practice where they sell their support to the highest bidder on specific issues.
These outcomes will fundamentally change the entire outcome of the last election, and could even go against the will of the voters (in this case, that of the FijiFirst voters) potentially rendering the outcome against the spirit of constitutional provisions which give precedence to the will of the voters. ( This is reflected by constitutional provisions such as the expulsion of MPs for going against the line of the party that the voters elected them on).
Resignations Following Deregistration
It is important to note, that following any deregistration of FijiFirst, even the resignation from parliament of a single member elected on the FF ticket, will force a by-election under Section 64 of the constitution as there would be no valid list from which to fill it.
In the scenario of the en masse resignation of FF MPs following any deregistration, 26 seats would become vacant, paving the way for a by-election that can significantly alter the composition of parliament and even government. According to Section 20 of the Electoral Act 2014, elections are only held for the vacant seats.
Therefore, if 26 seats become vacant and are contested, PAP could potentially end up securing an absolute majority by winning a further 7 seats, and parties such as the Fiji Labour Party and Unity Fiji could gain representation in parliament and even hold the balance of power in government.
There have been suggestions made on social media that FijiFirst may be deliberately flouting the financial disclosure to get deregistered.
However, any deregistration of the party and any subsequent masss resignation of FF MPs would be akin to political suicide.
Under Section 8(h) of the Political Parties Act 2013, the name of a new party cannot be the same as one that has been deregistered under provisions of the act which would mean that the goodwill and political capital associated with the party name would be lost forever.
For FF MPs who would have resigned, they would need to act very swiftly to register a new party as Section 7 of the PPA prohibits the registration of any new party following the issuance of the writ.
This would, however, be highly risky as nothing stops those in power from issuing the writ of elections on the same day that the FF MPs resign!
It would therefore be more logical for FijiFirst MPs to allow themselves more time to organise a new political grouping instead of resigning and triggering by-elections where they would have to run as independents with no realistic chance of election, or join one of the existing parties that they are presently opposed to.
The potential scenarios resulting from any future deregistration of FijiFirst pose complex challenges that have not been encountered before, as no parliamentary party has been deregistered in the past. With a possibility of this looming, the ramifications for political stability, and the integrity of our political system are immense.
In general, penalties in the Fijian electoral laws are draconian and have little precedence in democracies.
In a report titled “Political Finance Assessment of Fiji,” published by International IDEA of which I was the lead author, we highlighted the exceptional powers vested in the Registrar of Political Parties to deregister a political party.
We emphasized that party deregistration was a sanction employed in only 23.3 percent of countries worldwide. The report advocated for reserving party bans or deregistration for exceptionally serious violations or extreme cases, rather than relatively minor political finance infractions. These findings were, however, met with strong opposition from the then Registrar of Political Parties, Mr. Mohammed Saneem.
As the situation unfolds, different interpretations of the relevant laws are likely to emerge. However, it is apparent that the requirement for by-elections stipulated in the country’s supreme law could give rise to complications that may not have been foreseen even by its architects.
Nilesh Lal is the executive director of Dialogue Fiji. The views expressed in this article are the author’s and not necessarily shared by this newspaper.