THE Constitution Review Commission has recommended repealing the existing constitutional immunity provisions while also preventing any future government established outside the Constitution from receiving immunity.
The commission considered the protections provided under Chapter 10 of the 2013 Constitution, saying submissions from both the military and members of the public called for the removal of what they described as “broad and unconditional immunity for past coup perpetrators”.
“Submitters argued the provisions were inconsistent with equality before the law and created an obstacle to justice and accountability,” the report said.
Chapter 10 provides protection from criminal, civil and professional liability for certain individuals, while Chapter 12 Part D contains transitional provisions, including protections for laws, decrees and promulgations made before the 2013 Constitution.
The commission acknowledged the legal and political difficulties involved in removing the immunity provisions, noting the Supreme Court had previously considered the implications of retrospectively removing them.
“There was overwhelming support during its consultations for deleting the Chapter 10 immunity provisions.”
The commission recommended that future constitutions should prohibit the granting of immunity to anyone for actions taken or omitted in an attempt to establish a government other than in compliance with the Constitution.
It’s primary recommendation is to repeal Chapter 10 and Chapter 12 Part D by removing Section 159, while recognising that Government and Parliament would have to consider this in light of the Supreme Court’s ruling.
It also proposed that Government could refer the matter back to the Supreme Court, asking it to reconsider the validity of Section 159 and whether the permanent protection of the provisions had been adequately considered.
If neither approach succeeds, the Commission proposed a “harm reduction” option to reduce the impact of the existing immunity provisions.
