The Big Question of Immunity By Crosbie Walsh*

                     

 The big question that hovers over the forthcoming Constitution Commission and indeed over all events leading up to and including the election in 2014 is what to do about immunity for Bainimarama, his Cabinet ministers, the military, and the judiciary and senior civil servants who have been appointed since 2006.

Some will argue that there should be no immunity but realistically Bainimarama will not give up power until he is satisfied a solid immunity provision is in place.  It is, however,  one thing getting immunity or a presidential pardon, and quite another making sure it will stick.

The argument against the granting of immunity is a strong one. If the 1997 Constitution is deemed to be still in place, Bainimarama —and, it could be argued, all senior government servants including lawyers and permanent secretaries, all those who have taken an “illegal” oath of office, and perhaps even his more active supporters outside government— have committed treason, and they should be punished. Not to do so, it would be argued,  would encourage future coups.

Afterall, Sitiveni Rabuka was granted immunity for the 1987 coup and later formed a government. He was even made a life member of the Great Council of Chiefs . Rabuka's immunity may have encouraged  George Speight and his supporters in the 2000 coup but they were less fortunate. Though they may, conceivably, not have been prosecuted and imprisoned after signing the Muanikau Accord (that granted them immunity) had they returned all their weapons. More likely, though, the interim Government, with Bainimarama's blessing, used the missing weapons as a way out of honouring the Accord. Bainimarama wanted them imprisoned.

Immunity has depended on the intent of incoming government

These examples suggest that whether or not immunity is granted and honoured largely depended on the intent of the incoming government. Looking forward to the 2014 election, a Bainimarama-supported party in Parliament would ensure immunity, at least until the end of their term in office, but the return of the SDL and/or FLP parties would see him in Naboro prison — unless one of two situations were present:

First, if either or both these parties controlled Parliament, there is an outside possibility they would pass a Tolerance and Reconciliation Act, similar to the one the Qarase government intended to pass excusing the Speight plotters —before Bainimarama stepped in with the December 2006 Coup.

Secondly, and more likely, Bainimarama will seek to have his immunity or a pardon written into the new Constitution, and no elections will go ahead until all political parties have publicly stated they will pass the recommendations of the Constitution Assembly into law, with no amendments.

Immunity granted by the Director of Public Prosecutions

Immunity is normally granted on the recommendation of the Director of Public Prosecutions or in some common law jurisdictions by the Attorney-General. Rabuka was given such an immunity by the DPP in 1987.

It is normally granted on the grounds that a crime has been committed, and there is evidence that the suspect has committed the offence, but immunity is required to obtain the evidence of the suspect to prosecute another more culpable suspect. This may protect some Bainimarama's “accomplices” but not Bainimarama and other key figures.  The granting of immunity must also be in the interests of justice and the public interest. These concepts are especially hard to define in the present political situation but national security (the need to retain the loyalty of the military) could provide a sufficient reason.

Once immunity is granted it may normally only be reversed by the courts if there is evidence that the DPP has acted in bad faith, and with improper and dishonest motives. If this is the case, it should be unnecessary to pass an immunity decree, or have the decree embedded in the new Constitution, because the DPP already has constitutional power  even under the 1997 Constitution to decide who should and who should not be prosecuted.

The problem with this view is that both the DPP and the Attorney-General are Bainimarama  appointees, and may well therefore be considered illegal by an incoming government. Some “reinforcement” would therefore seem necessary, probably within the new Constitution, if the immunity approach is to followed. An alternative would be the granting of a Presidential Pardon.

The Presidential Pardon (the Prerogative of Mercy)

The late President Ratu Iloilo granted Bainimamara and others involved in the 2006 immunity in 2007,  but it is unlikely this would withstand a challenge in Court.

It is said Government has been informed its best option is to obtain a new Presidential pardon from a new president. and have a one-off pardon decree embedded in the Constitution, though this, according to a lawyer writing in Fiji Today, could well still leave Bainimarama and others open to “legal redress … for any perceived crimes.”

He added, “Fiji has a history of vindictive use of the legal system and some unknown, but very well financed, individual could cause chaos with a raft of civil lawsuits aimed at any, or all, of the current players.”

Nothwithstanding these forewarnings, a pardon could be granted by the present president, Ratu Epeli Nailatikau (and become a Pardon Decree) or by a new president nominated  or elected before the 2014 elections.

One problem with this approach from a government point of view is that there is no guarantee an elected president would be sympathetic. What, for example, would happen if Ro Teimumu Kepa were elected? And if Bainimarama were elected President, could he legally and justifiably grant his own pardon?

Another problem is that a Presidential pardon is usually only granted after a trial and conviction.  In previous Constitutions, it was called the Prerogative of Mercy and a commission or committee was usually created to advise the President. I doubt Bainimarama would voluntarily agree to stand trial.

There is, however, nothing in law to prevent the exercise of the Prerogative without trial or conviction if there were such a provision in the Constitution, but such a course would be unique in constitutional convention and law.

How the president is appointed is also pertinent to likely outcomes. To be fully accepted by the political old guard, he or she would need to be appointed by the Great Council of Chiefs on the recommendation of the Prime Minister, with approval from the Leader of the Opposition. This would mean reviving the GCC and asking Qarase, Chaudhry and Beddoes to recommend the new President. This would be as ludicrous as it would be unacceptable by the Bainimaramara Government. Though I'm sure the old guard would accept Ro Teimumu, however she were appointed.

The President could also be appointed by a Council of Advisers appointed  by the Constitution Assembly before the 2014 election, or by a national Presidential election (where all those over 18 can vote) held before or at the same time as the 2014 elections. This would mean the President would not be appointed by parliament. It could also mean the identity of the President would not be known until after the election.

Where does this leave Government and its opponents?

If the opponents are determined to charge Bainimarama Government officials with  treason their best bet would be to “neutralise” the Constitution process and forestall all decisions until after the 2014 elections, and then hope they had a sufficient parliamentary majority to launch, or legally support, treason charges. If, prior to or immediately after the elections, they could also have Ro Teimumu (or another similarly disposed person) elected or appointed President, they would have won back all the ground lost since 2006.

But this dream outcome is likely to remain a dream for two reasons:

First. Bainimarama and the military will not abandon their plans, with or without immunity. They want a new Fiji.  And the Constitution Commission and Assembly will accept the “guiding principles” of the People's Charter.  Divided as Fiji is, the Assembly will aim at consensus but its recommendations will be based on principle and pragmatism. Not everyone will get their way but the final outcome will be acceptable to the majority of the population, even if that includes an immunity provision.

Secondly, come the elections, it is exceedingly doubtful the old parties will have sufficient political clout to bring about a total reversal of the Bainimarama years. And it is far from certain the SDL and FLP can stay together long enough to make any impression in Parliament. It is also possible, if their court cases go against them, that Qarase and Chaudhry will be non-starters, and this will leave doors open for new leaders within the old parties who have fewer axes to grind and different agendas.

What is still not known is whether a Bainimarama party will emerge to contest the elections. Or whether a new party will be formed that wins support away from the old parties. Or whether Bainimarama may be able to broker agreements with and between some of the parties that will stand candidates, binding them to uphold the Charter, the Assembly recommendations, and immunity.  If any of these developments eventuate, Bainimarama may be assured a vote of treason will not be passed by Parliament.

Amending the new Constitution

More than a simple parliamentarymajority will be required to amend the Constitution, whether or not it contains an immunity provision. It is likely to require a two-thirds majority but it could also include further safeguards. Changes to the US Constitution, for example, require a 2/3 vote in both houses of Congress, Australia requires approval in both Houses and a referendum, and most Scandinavian countries require approval by two parliaments separated by an election.

A fortune teller is not needed to predict Fiji's new constitution will make new provisions for elections, the appointment of the President, immunity and changes to the Constitution.

Not to be forgotten also, when it comes to the Election, is that voters in 2014 will include 18-20 year olds in non-racial electorates where all votes are of equal value. The SDL only just won the rushed,  racially-flawed and unfair 2006 elections.

Whatever happens, it seems most likely that firm protection will be made for immunity against legislative action, but this will not automatically provide protection against personal or private charges in the Courts.

The best protection against this is for the constitutional process to proceed with healthy discussion and the minimum animosity, resulting in consensus on most issues. If this is achieved , the more vindictive litigants against the Bainimarama Government may be persuaded not to proceed for fear of heavy legal costs and the fear they would be laughed out of court by ordinary Fijians.

By 2014 the overwhelming majority of Fiji citizens will have learned from the past and want to put it behind them.

 * I acknowledge the kind advice of three anonymous lawyers,  one from Fiji Today,  in preparing this article for publication.  This article follows from a posting two weeks ago in which Na Lawedua discussed differences between legality and legitimacy.  If you have not already done so, I suggest you read it first.(Click here)