Prominent Suva lawyer Richard Naidu says removing immunity provisions for coup perpetrators from Fiji’s Constitution may not necessarily result in prosecutions or legal action against those responsible for past coups.
Mr Naidu says much of the current debate surrounding constitutional immunity has been dominated by rhetoric rather than a realistic assessment of its legal implications.
“There seems to be lots of earnest talk about constitutional immunity for coup perpetrators and whether it should be a feature of our Constitution, or deleted, etc,” he said.
“And, as usual, there’s a lot of rhetoric but not much realism.”
Mr Naidu explained that immunity clauses protect coup perpetrators from criminal prosecution and civil claims arising from their past actions, but do not protect those who might stage coups in the future.
He said removing such provisions could potentially expose Prime Minister Sitiveni Rabuka and former prime minister Voreqe Bainimarama to criminal complaints over their roles in past coups.
However, he stressed that any decision to investigate or prosecute would rest with constitutionally independent institutions, including the Fiji Police Force and the Office of the Director of Public Prosecutions.
“The DPP – also an independent decision-maker – would have to decide if it was in the public interest to prosecute them,” he said.
“Or they may decide – for what may be good reasons, including the long passage of time – to do nothing at all.”
Mr Naidu said civil claims would also face significant legal hurdles because the usual limitation period for such actions was six years, or three years in some cases.
“So there is a good chance that if you deleted the immunity clause from the next constitution, nothing very much would happen,” he said.
He also questioned whether removing immunity provisions would deter future military takeovers, pointing out that those planning coups already faced serious criminal consequences, including treason charges.
“If you are planning to overthrow the Government with guns, you already risk going to jail for the crime of treason – ask George Speight,” he said.
Mr Naidu argued that successful coup perpetrators could simply replace the Constitution they had breached and introduce new immunity provisions protecting themselves.
