FIJI’S constitutional history has always carried a difficult question that the country has never quite been able to settle: what happens when those who helped break the constitutional order are later protected by the very Constitution that replaced it?
For decades, immunity has been part of Fiji’s attempts to move beyond military interventions and return to constitutional government.
But the Constitution Review Commission’s 2026 report has now put that arrangement back under the microscope, arguing that the protections have become increasingly difficult to reconcile with the principle that everyone should be equal before the law.
The commission’s recommendation is clear: “remove the existing immunity provisions and prevent similar protections from ever being granted again for future attempts to establish a government outside the Constitution.”
But that apparently simple proposition runs into a significant legal obstacle.
The commission itself acknowledges that the Supreme Court has previously considered the immunity provisions to be entrenched, meaning they cannot simply be amended through the ordinary constitutional process.
That leaves Fiji facing a much bigger question than whether immunity should remain.
It raises the question of whether the country can democratically remove a protection that its current constitutional framework has effectively placed beyond amendment.
The immunity that has remained
The CRC’s discussion begins with what it heard during its nationwide consultations.
Submissions from the public and the Republic of Fiji Military Forces called for the removal of the broad and unconditional immunity protecting people involved in past military interventions.
Submitters argued that the provisions conflict with equality before the law and create an ongoing obstacle to justice and accountability, particularly when people who committed similar acts outside the protection of constitutional immunity could face criminal, civil or professional consequences.
The commission describes Chapter 10 of the 2013 Constitution as exceptionally broad.
It protects individuals from criminal, civil and professional liability arising from specified past political events, while the transitional provisions in Chapter 12 Part D preserve other protections and legal arrangements connected to earlier constitutional orders.
That distinction is important because the CRC is not looking at one isolated clause.
It is looking at an entire constitutional architecture of protection.
The commission says there was universal support among the submissions it received for deleting the 2013 Constitution’s immunity provisions in Chapter 10.
The RFMF itself was among those calling for change.
The military submission went further, asking for constitutional clarity over the role of the RFMF and affirming the supremacy of civilian authority.
It also proposed a constitutional “right to truth”, drawing on United Nations principles on remedy and reparation, and suggested that where immunity remained, it should be connected to truth-telling.
That is where the immunity debate becomes more complicated.
The argument being put forward is not simply about punishment for the past. It is also about what Fiji does with the history of its coups, who tells the truth about what happened, and whether constitutional protection should continue indefinitely without any corresponding obligation to account for those events.
The commission notes the distinction between “unconditional immunity” and “conditional immunity”.
Its discussion recognises that immunity may historically have played a role in allowing Fiji to move from periods of military rule towards democratic government.
The Supreme Court has previously recognised that context, noting that unamendable immunities may have been necessary conditions for a peaceful transition from military government to democracy.
That history is important.
Because removing immunity today is not necessarily the same constitutional question as granting it during a transition from military rule.
The commission accepts that Fiji’s constitutional history has made immunity part of the political settlement that followed military interventions.
But it also records what it heard from the public: that those protections are no longer politically acceptable to many submitters.
And that is the tension sitting at the heart of this recommendation.
The legal wall
This is where the CRC report moves from principle into a much more difficult legal question.
The commission’s primary recommendation is to repeal Chapter 10 and Chapter 12 Part D by repealing Section 159.
But it does not present this as a straightforward amendment.
The commission acknowledges the Supreme Court’s previous ruling on the entrenchment of the immunity and transitional provisions and says it will ultimately be for Government and Parliament to decide whether to pursue the proposed amendment in light of that ruling.
In other words, the CRC is recommending something it knows sits against an existing judicial determination.
That does not mean the commission ignored the court.
In fact, much of its discussion is devoted to trying to find a lawful pathway around the problem.
The first option is repeal. The second is to ask the Supreme Court to reconsider its earlier determination.
The commission says another reference could ask the court to revisit the validity of Section 159, particularly because, in the commission’s view, the previous decision did not adequately consider the consequences for future generations of permanently protecting the immunity and preservation provisions.
It also raises the question of the transitional provisions in Chapter 12 Part D, which protect promulgations and decrees from constitutional challenge.
The commission says the implications of making those protections permanently unamendable deserve further consideration.
But importantly, the CRC does not claim that another Supreme Court reference would necessarily succeed.
It openly acknowledges that there is no certainty the Government would make such a reference or that the court would reach a different conclusion.
If immunity stays
And then comes the third option.
If repeal is unsuccessful, and if a further Supreme Court pathway does not result in the removal of the provisions, the commission recommends what it calls a “harm reduction” approach.
This is where the earlier Ghai Commission draft becomes relevant. The CRC proposes an adapted ‘Oath of Reconciliation and Allegiance’ for beneficiaries of immunity.
The idea is that immunity would remain, but those benefiting from it would be required to renounce past actions and submit themselves to democracy and the rule of law.
It is a very different proposition from simply removing immunity. One approach says the legal protection should disappear.
The other accepts that the protection may remain but seeks to attach an obligation of acknowledgement and reconciliation to it.
The commission therefore puts forward three possible routes: repeal the immunity provisions; seek another Supreme Court determination on whether they can be repealed; or, if neither succeeds, reduce the impact of the existing provisions through an adapted oath.
And alongside all three is another recommendation that is perhaps even more significant for Fiji’s future.
No immunity for the next coup
The CRC recommends that future immunity be prohibited altogether.
It wants a new constitutional supremacy provision stating that no immunity can lawfully be granted under any law to any person for actions taken or omitted in furtherance of an attempt to establish a government other than in compliance with the Constitution.
Such an attempt would be deemed unlawful.
This is different from the question of what should happen to people protected by existing immunity.
The commission is effectively drawing a line between the constitutional settlements of Fiji’s past and the rules that should govern Fiji’s future.
Whatever happens to the existing protections, the recommendation is that a future attempt to overthrow or establish government outside the Constitution should not later be capable of being insulated by another immunity provision.
That would change the constitutional message considerably.
The question would no longer be whether a future political settlement could eventually provide legal protection for those involved.
The Constitution itself would say that such protection could not lawfully be created.
