REMOVING constitutional immunity provisions from Fiji’s next Constitution may achieve little in terms of holding past coup perpetrators accountable, with senior Munro Leys lawyer Richard Naidu arguing that any prosecutions of coup leaders would be left to independent institutions such as the police and the DPP (Director of Public Prosecutions), not politicians.
In a social media comment on the ongoing debate over constitutional immunity, Mr Naidu says it is not certain that deleting the provisions would result in prosecutions or civil claims against former coup leaders Sitiveni Rabuka and Voreqe Bainimarama. He explains that immunity clauses protect coup perpetrators from prosecution and civil damages claims for actions committed in the past, but do not extend protection to those who may attempt future coups.
Mr Naidu argues that successful coup-makers effectively secure immunity for themselves by establishing a new constitutional order and including provisions protecting their past actions.
He says that if immunity were removed from the next constitution, any complaints against the two former coup leaders for their actions would have to be considered by the police and DPP, who were independent institutions. Politicians would not decide this.
The police would determine whether an investigation or charges, including treason, were warranted, while the Director of Public Prosecutions would independently decide whether prosecution was in the public interest.
He also pointed to legal limitation periods of for civil claims, noting that the usual limitation period is six years, and in some cases three years, making claims relating to events decades ago difficult to pursue.
On whether removing immunity would discourage future coups, Mr Naidu argues that anyone intending to overthrow a government already risks prosecution for treason.
He further notes that successful coup-makers could eventually discard the constitution they had overthrown and establish a new one containing immunity provisions for their own actions. Mr Naidu says Fiji should retain the existing immunity clause as it draws a line under the past without causing significant harm to the future.
“And the future is where we need to be focused now. Twenty years of inaction on many basic issues has left our futures more challenging than most of us understand,” he said.
