Coups are the operational monopoly of the military with the backing of the oligarchy and tacit support from major business interests.
The only time a civilian tried it (even with the help of the army) was George Speight in 2000; it failed.
Some perpetrators were recently released, while others are still languishing in prison.
In contrast, the successful coup executors have granted themselves immunity or impunity from constitutionally objectionable prosecution.
Immunity
In the aftermath of a coup, a delicate balancing act regarding returning to normalcy and granting immunity is often the choice to secure national unity, particularly if the perpetrators have the strength to destabilise a return to democracy.
While this may be beneficial in the short term, sustainable political stability remains elusive.
In any event, immunity implies that coup perpetrators are immune from prosecution in any court in Fiji.
The immunity conferred by the 2013 Constitution will insulate from prosecution those who might otherwise be charged for the crime of treason (and who would have been in the best position to prevent the relevant events).
It is, therefore, evident that constitutional immunity is not in the best interest of the victims of crimes committed — or the nation.
History shows that crimes from which leaders and government officials are exempted are usually committed at the hands of the state or those who wield state-like power.
It raises the thorny question of who will hold the perpetrators of these alleged crimes accountable, or provide restitution to the victims.
Background
Constitutional immunity provisions first appeared in the 1990 Constitution in section 164, which granted immunity from criminal and civil responsibility to the leader of the military coup on the 14th of May and 25th of September 1987.
The immunity also extended to the disciplined forces and any person who showed allegiance to the coup leader or carried out instructions of the Fiji Military Government.
In 2010, following the 2006 coup by the military, the Limitation of Liability for Prescribed Political Events Act was decreed into force by the interim military government.
This time, the Act granted irrevocable, absolute, and unconditional immunity to all prescribed persons or coup perpetrators from any criminal prosecution or civil liability in any court or tribunal.
The immunity provision in the 2013 Constitution reaffirms that the immunity clause in the repealed 1990 Constitution continues in force.
Similarly, the immunity granted under the Limitation of Liability for Prescribed Political Events Act continues.
Military monopoly on coups It is no secret that the 1987 coup let the proverbial genie out of the bottle, which continues to rage through the political landscape in Fiji.
It altered the role of the military, the executive branch of the government, the civil service and party politics to what we have today.
It also entrenched the unsavoury habit of circumventing the law to achieve a desired end.
Aristotle wondered whether it was better to be ruled by the best man or the best laws.
It depends on the type of law one is considering and the regime that enacts and administers the law.
The reputed “bloodless coup” of 1987 revealed the training and experience soldiers gained through famed peacekeeping operations.
The military ensured control through checkpoints, successfully repressing the populace through intimidation and fear.
The size of the military more than doubled overnight, as did their salary and perks.
The militarisation of the civil service became evident, as well as the polarisation of the major ethnic groups as indigenous rights surged to the forefront.
The 1987 coups politicised the military and tarnished the reputation of the once proud and revered institution.
Civilian coup
The military facilitated the so-called civilian coup of 2000.
Theories abound on who the real perpetrators were.
Still, Commander Frank Bainimarama could not dispel the ignominious allegation (never proven) that he was party to the coup and the upheaval that followed.
This time, things turned bloody and more violent as people witnessed a mutiny at the military headquarters for the first time.
The Commander, Frank Bainimarama, turned the fiasco to his advantage by playing the role of saviour amidst the reprehensible deaths of soldiers.
The political manoeuvring that followed established two things: first, the military is politicised and entrenched in the country’s political landscape.
Secondly, it showed the unpalatable aptitude of circumventing the law to an end.
The “coup to end all coups”
The events leading up to the 2006 general election were something to behold as the rule of law continued to deteriorate.
The Commander, Frank Bainimarama, directly threatened the Government while police continued investigating events around the 2000 coup.
For the first time, the military became involved in a political campaign against the Government of the day.
The secrecy backdrop to coups was no more, as Bainimarama all but publicly announced his intention to take over the Government.
With the benefit of hindsight, it is now apparent, in my view, that the allegations of widespread corruption and the detrimental effect of the
Qoliqoli Bill on the economy were merely smokescreens to the power grab.
The military has mastered the art of repression, which became more intense in the 2006 military coup.
Control mechanisms contributed to increased militarisation, and the lack of cohesive protests contributed to increased military presence and activities.
Weaponising the law through decrees limited the right to assembly and protest; arbitrary arrests of dissents with impunity for arresting officers;
increase in the number of “blacklisted” individuals who opposed the regime; increased surveillance on human rights defenders; expulsion of expatriates, and disregard for the rule of law.
Arbitrary detention and police brutality were the modus operandi of the military regime after the 2006 coup.
History proves that the glorious undertaking by Bainimarama, that it was “the coup to end all coups” and that no army officers would benefit from his coup, was a hollow promise.
Bainimarama and many people associated with him remained in power through the 2014 democratic elections.
This fact and the significant militarisation of Fiji’s civil service indicate that military influence is entrenched and will continue to be part of the country’s political landscape for many years.
Legal conundrum
The rule of law is based on Aristotle’s notion of separating the rule of law from the rule of man.
Through the Magna Carta in 1215, the British proclaimed for the first time that the sovereign or king is subject to the rule of law and documented individual liberties and rights.
The rule of law is the mechanism, process, institution, practice, or norm that ensures the equality of all citizens before the law and generally prevents the arbitrary use of power.
As was the case in Germany under Adolf Hitler, democracy without the rule of law ultimately led to dictatorship.
Arbitrariness leads to despotic governments in which, at the apex of the structure, the leader/ dictator can act without the constraint of law when he wishes to do so.
Thus, constitutional democracy and the separation of power through the three arms of government were developed.
This equilibrium collapses when the executive illegally usurps power and legislates immunity into law.
The military in Fiji, entrenched in politics, perpetuates the coup culture through the immunity provision in the Constitution.
They are illustrated by the much-maligned section 131(2) of the Constitution, which, according to some, gives the military the power to intervene in the country’s governance.
Prevention is better than cure
The immunity provision in the Constitution is repugnant to the rule of law.
It contradicts the very essence of the constitution as outlined in the preamble, declaring respect for human rights, human dignity, and justice.
The veil of immunity shielding coup perpetrators must be pierced to attain stable democracy.
Immunity has to go, and the onus is on the people — the ultimate source of legitimacy and sovereignty — to petition the Government they elected to review the 2013 Constitution.
Preventing another coup is better than finding a cure after it happens.
Conclusion
Institutions and leadership in Fiji must be realigned to foster a change to the coup culture and reverse the tendency to circumvent the law
for personal agendas.
Immunity is averse to the tenor of the constitution and repugnant to the rule of law.
We cannot have the military making law and enforcing it or being judge and executioner or risk of becoming the Myanmar of the Pacific.
Preaching the rule of law must develop into practice, whatever the situation that is the prerequisite for a stable democracy and economic sustainability in Fiji.
•Dr JALESI NAKARAWA is a legal scholar and law lecturer at Fiji National University. The views expressed in this article are the author’s and do not reflect the views of this newspaper.
