MYTHIC CONSTITUTIONALISM: WHITHER FIJI’S COURSE IN JUNE, 2007? - Rt Joni Madraiwiwi

7/31/2019 MYTHIC CONSTITUTIONALISM: WHITHER FIJIS COURSE IN JUNE, 2007? - Rt Joni Madraiwiwi

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MYTHIC CONSTITUTIONALISM:

WHITHER FIJIS COURSE IN JUNE, 2007?

Paper presented at the Workshop The Fiji Coup Six Months On,

organized by the State, Soc iety and Governanc e in Melanesia

Prog ram a nd the Pac ific Centre, at the Austra lian Nationa l

University, Canberra, on 5 June 2007

Reflecting on the statement made by the Commander of the

Republic of Fiji Military Forces, Commodore J V Bainimarama,

upon seizing power and ousting the Multi-party Government of

Prime Minister Laisenia Qarase on 5 December, 2006 one is

bemused by some of the Commanders rheto ric . In his remarks

he sta ted inter a lia:

The RFMF c ould have c arried out unc onstitutiona land illegal activities, but had not done so and will

not d o so.

It believes in the rule of law and shall adhere to the

Constitution. It not only adheres to the rule of law

and Constitution, but more importantly believes inadherence to the spirit of the law and the

Constitution


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There appea r to have b een three ma in rea sons for the milita ry

intervention: alleged widespread corruption and abuse of

office reflected in the militarys oft-repeated threat to clean

up the Government; the barely disguised hostility betw een the

Government and the military over the formers alleged

involvement with and condonation of those associated with

storming Parliament and taking hostages in May 2000 ; and the

expanded role the military saw for itself following those events.

The Com ma nder and his c lose c oterie o f advisers saw the

military as the ultimate guarantor of the peace, echoed

constantly in p ub lic sta tements and p riva te d isc ussions.

With the military arrogating for itself the role of guardian and

protector, the Police Force has become increasingly

demoralised . The reformed and reb uild ing of morale

implemented by Commissioner Andrew Hughes have

dissipated gradually since his departure in November last year.

The milita ry has b lurred the bound aries betw een p olic ing and

security roles at the cost of Police independence and

autonomy. Paradoxically, the business community has been

quic k to emb race the expanded rea c h of the m ilita ry. They

welcomed the presence of checkpoints and the involvement

of the military in policing as having a salutary effect on crime.

Suc h tunnel vision is und ersta nd ab le b ut shortsighted. There has

been a rea l undermining o f the rule o f law in the ac tions of the


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military. Neither has crime diminished, it has simply relocated

elsewhere.

The b rea c hes in huma n rights sinc e the c oup have b een on a

wide scale culminating in the deaths of 41 year old Nimilote

Vereb asaga and 19 yea r old Sakiusa Rabaka. There have been

two related ob jec tives. The first w as to intimida te and frighten

opponents of the military. In this regard, skills acquired in

soldiering abroa d have b een dep loyed for suc h end s. The

second objective was to consolidate their position further by

assuming policing in functions in the months after the coup.

They rea d ily attended to inap prop ria te c a lls for their

intervention from many Indo Fijians, and other citizens frustrated

or dissatisfied with the level of police investigations on their

beha lf. The help lessness of the ord inary c itizen was heightened

by the inexplicable stance assumed by the Fiji Human Rights

Commission in (FHRC) favour of the milita ry. Tha t has c ontinued

to the present day. It was the Director of the FHRC who issued

an elaborate justification for the militarys actions of 5

December 2006. One tha t has emboldened and susta ined the

military in its peculiar understanding of what adherence to the

Constitution mea ns.

As self-appointed guardian of the public interest, the military

and the Commander were able to enlist a disparate coalition

to their cause. After the 2001 elections to the eve of the coup,


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the m ilita ry p layed a genera lly useful if som ewhat voca l pa rt in

general debate on issues of national interest and concern.

There is little doub t this helped to moderate the Soqosoq o

Duava ta Ni Lew enivanua (SDL) Government s inc lina tion to

pander to the nationalist and more extremist elements in its

midst. When the Commander finally mounted the coup, he

had a ready constituency beyond the command structure of

his officers and foot soldiers. This c onsisted of the Fiji Labour

Party and a la rge majority of the Indo-Fijian community, sc a rred

by the events of May, 2000 and by sense o f a liena tion from the

SDL Go vernment b ec ause of som e of is polic ies. A ma jority o f

the minority c omm unities a lso felt likewise i.e. ma rgina lised and

deprived of opportunities to benefit from Government

assistance. It also included the Roman Catholic Church

hierarchy, a significant section of civil society, elements in the

jud ic iary a nd the professiona l c lasses as well as a portion of the

priva te sec tor.

The Interim Government formed by the Co mmander, a fter his

appointment by the President as Interim Prime Minister on 5

Janua ry 2007, is revea ling . While multiethnic in c harac ter, it ha s

limited Fijian support. Those Fijian politic ians who are in the

Interim Cabinet were unsuccessful candidates at the last

elec tions in May, 2006. There is only one mem ber of the SDL

Government rep resented and he is there by defa ult. The


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Comma nder ma y well have had good reason for exc luding the

ousted SDL Government, but it und ermines his leg itimac y. The

Interim Government is unfortunately perceived by many in the

Fijian heartland as the handmaiden of Mr Chaudhry. Many

Fijians are convinc ed this was an indo Fijian c oup . Still others,

think it was a Muslim coup because of the association with a

few p rominent Muslims. These p erc eptions, even if mista ken,

pass for rea lity from which c onc lusions a re d rawn. The a c tua l

explanation is less inflammatory: the interest of various

ind ividua ls and group s happen to c oinc ide with the milita ries. It

was both opportunistic and principled, a few believing they

were ac ting in the Nations interest.

The e ffec t the Commander has had in the short time he ha s

had c entre stage is profound . No other Fijian Lea der, Rabuka

and Apolosi R Nawai included, has so directly confronted the

Fijian establishment and remained seemingly unscathed. He

has in turn sc orned the SDL Go vernment, the Method ist Churc h

and the Bose Levu Vakaturaga (BLV). He has had verbal jousts

with those of chiefly rank. In ousting the Qarase Government

and in the arbitrary dismissals and removals of Government

Chief Exec utive Officers (CEOs), Sta tutory Corpora tion CEOs

and memb ers of Sta tutory and Corporation Boa rds, the

Commander has gutte red the Fijian midd le c lasses. These are

the ranks from which Fijian leaders would be expected to


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emerge. For the future, he has ensured a sense of festering

resentment that will be visited on the body politic in time to

come. The suspension of the BLV, following its refusa l to end orse

the Presidents nominee for Vice President on 11 April 2007,

demonstrates further the Commanders revolutionary status in

the c a ta c lysmic sense of the te rm. The BLV itself is in ma ny

senses a symbol. In treating it in such a cavalier and

contemptuous manner, the Commander exposed the facade

of its autho rity. This has compounded the erosion of trad itiona l

authority struc tures. That may not be such a bad thing, rep lete

as it is with shibboleths and anachronisms which need to be

cleared.

And what of this brave new world upon which the

Commander, the military and the Interim Government are

embarked? One in which Fiji emerges as a tolerant multi-

cultural, multi-religious society. Where all its parts are

comfortable with themselves and peacefully integrated with

each other. It is a laudable goal. But can we be forced to

embrace each other within months and years, when the

process of change takes at least a generation? Asserting it is

one thing, delivering that outcome quite another. Removing

communal voting and ethnic categorization is merely the

beg inning of the fac ilita tive m ea sures to be taken. They w ill not

in themselves assure the desired result. Demographics and


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continuing emigration by other communities mean an ever

inc rea sing ind igenous prop ortion of the pop ula tion. Irrespec tive

of how the electoral boundaries are drawn, it is likely that a

Fijian- dominated political party will form the next elected

Government. What w ill the Com ma nder and his fellow travellers

do then? Many Fijians rema in ena moured with the c onc ep t o f

the Ind igenous Cla ims Tribuna l and the Qoliqo li leg isla tion. It

resona tes with wha t they believe ind igenous rights c omp rise. As

for ra tiona le o f the Rec onc ilia tion, Toleranc e a nd Promotion o f

Nationa l Unity Bill, that has been made more top ic a l in the light

of the m ilita rys potentia lly trea sonous c ond uc t on 5 Dec ember,

2006.

In its engagement with the Eminent Persons Group from the

Forum and the European Commission, the Interim Government

has stipula ted a three yea r period as the time line for elec tions.

This to b e p rec ed ed by a c ensus and an elec toral re

d istribution on non-ethnic lines. Rea d ing between the lines from

various statements attributed to the Commander and the

Interim Minister for Finance, one senses that both would rather

an even longer period. However, real politik obliges them to

ap pear to ac c omm od ate the p rop osals of our neighb ours and

friend s. The longer the period to elec tions, the less likely the

Comm ander and Mr Chaudhry fee l the SDL will return to the

trea sury benc hes. We have alrea dy c anvassed the rea sons


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why this rea soning is flawed . In fac t, the a pologists for the c oup

among c ivil soc iety support the c a lls in some quarters tha t there

be less ha ste for elec tions. They a rgue othe r initiat ives must first

be imp lemented to ensuring a more equitab le soc iety in order

to have a solid found a tion for demo c racy. This presupposes

tha t there is some req uirem ent fo r soc ia l eng ineering of sorts to

construc t a democ ra tic frame wo rk. The irony tha t these

measures are to be implemented by usurpers with a dubious

mandate, which are better left to an elected government, is

lost on those apolog ists.

The c entre p iec e of the Interim Government s leg isla tive

agenda is the Independent Commission Against Corruption

Promulgation 2007. It was enacted by the President under

section 85 of the Constitution which nominally vests executive

power in him. The High Court w ill be ruling in d ue c ourse on its

constitutionality following legal questions referred to the High

Court in a recent case the Commission was purporting to

prosecute. Leaving aside that issue for present purposes, the

capac ity of the Interim Government to ena c t such leg isla tion is

a va lid considera tion. An Exec utive whose ma ndate rests not in

the popular will but on the force of arms has no authority to do

so. The Commander relied on the doc trine of nec essity to

sanc tion the a c tions taken b y the milita ry on 5 Dec ember 2006.

It is trite law that the doctrine is of limited application and only


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authorizes defacto rulers to do that which is administratively

necessary without more. It matters not that the Commander

restored executive authority to the President on 4 January,

2007. The p rinc iple still ap p lies bec ause the Inte rim Government

indirectly derives its authority from the coup. It and its legal

advisers must be held to account for the legal fallacies they

have so eg reg iously asserted since Dec em ber 2006.

Despite these misgivings, the stated intentions of the military,

now c hamp ioned by the Interim Government to c lea n up the

Government, statutory bodies and corporations have

resona ted widely. There is a p rofound sense of anger in the

community, among all ethnic groups, at deep seated

corruption, cronyism, nepotism and abuse of office. However,

apart from the work of the Commission, the arbitrary dismissals

and removals that have been an integral part of this initiative

have been misconceived. A majority of those targeted were

not a t fault. The mistake of a few wa s a c lose assoc ia tion with

the previous Government. For others, it was being singled out

by the Commander as potential sources of dissent. In six

months of much publicity, and even more posturing, very few

peop le have b een p roc eed ed aga inst. This from a milita ry tha t

has obdurately resisted any effort to investigate the deaths in

custody of Counter Revolutionary Warfare soldiers in

November, 2000, the full disclosure of the RFMF Regimental


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Funds and the recent deaths Verebasaga and Rabaka in

milita ry custody. The m ilita ry cannot demand transparenc y and

accountability from others, while resisting the application of a

like sta ndard for itself.

To its c red it, the Interim Government ha s withdrawn the

Emergency Regulations (the Regulations) with effect from

midnight 31 May, 2007. Although we are not privy to the

military s intelligenc e rep orts, their sense o f insecurity was

obviously acute. Given their monopoly on ammunition and

ability to react rapidly to any situation, the continuation of the

Reg ula tions appea rs to have been to reinforce their position vis

vis the general population rather than for stability.

Meanwhile the Interim Government has recently proposed a

high level Council and secretariat heralding a process of

engagement with the w ider c ommunity (as rep resented by key

parties in civil society and the private sector). What is

envisaged at the end of several months consultations is a

charter that reflec ts the b roa d p rinc ip les upon w hich our future

go vernanc e is to b e based .

The c onc ep t per se has some merit. However, the structure is

cumbersome and there is a very real doubt that the voices of

ordinary peop le will be hea rd . There a re a lso c ontinuing

concerns about the legitimacy and mandate of those


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c onvening the g athering . Is this a genuine effort at d rawing the

peop le o f Fiji togethe r? Or is it merely an a ttempt by the Interim

Government and its cohorts to cloak themselves in some

ma ntle o f pop ula r ac c laim? Moreover, the Interim Gove rnment

has given little in return about from the withdrawal of the

Reg ulations. There appea rs to be d ivided op inion on this issue,

a lthoug h my sense is tha t the doub ters appea r mo re

persuasive. The process is as c ritic a l as the outc ome. However,

one has not heard anything from either the Comma nder or his

senior Ministers about engaging their opponents. If this were to

become another talkfest, where the Interim government

preaches to the converted and is reinforced in its convictions,

an opportunity for constructive dialogue and possible

rec onc iliation would have g one b egging.

Where the military and the Interim Government may have

gone astray is in the sc a le of the ir ob jec tives. In a rela tively short

spac e of time, whe ther it is two, three or five yea rs is irreleva nt,

they wish to remake this country. It is a worthy ambition but

unrealistic in the circumstances. Conducting a census and

redrawing the electoral boundaries on non-ethnic terms are

huge tasks in themselves. As are the reform of the public

service, the removal of corruption as well as the restoration of

the ec onomy. To envisage the b eg innings of g rea ter

interethnic integration several years hence seems to be an


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exercise in sublime optimism. Merely mouthing the rhetoric

among the converted does not transform the concepts into

reality. In asserting his vision of Fiji, the Commander has also

a liena ted Fijian relig ious lea ders who have grea t influenc e ove r

the ir follow ers. They will be reinforced by upward ly mob ile

professionals and traditionalists offended by the diminution of

a ffirmative ac tion polic ies. Together they will either d istanc e

themselves or circumscribe involvement from the Interim

Government s polic y of engag ement.

As for inter-ethnic relations, this coup has seen little of the overt

rac ism and tensions tha t fo llowed the previous coups. The Fijian

com munity has ac c ep ted the overthrow in sullen silenc e. Many

Indo Fijians see it as a measure of poetic justice for the

indignities they suffe red p reviously. Some o f the ir leaders have

expressed support for the militarys actions. It is a reflection of

how little we know each other. How will this play out in the

future? What will p rob ab ly happen, is tha t there w ill be no inter

ethnic reprisa ls but Fijians will more strong ly end orse

indigenously-oriented policies in the government they elect.

Political unity will not be the problem it has been, because of

the p rep ond eranc e o f Fijian numb ers.

The key to the Inte rim Government s surviva l rests on tw o

factors: the performance of the economy and the holding of


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genera l elec tions. Should the fo rmer imp rove by the end of the

2007, the pressure on the interim Government will ease slightly.

However, this eventua lity is deb a ta b le a t this point. The pub lic

service unions appear to have muted their calls for industrial

action over the five percent wage and salary reductions and

the lowering of the retirement age to fifty-five (55). The injec tion

of funds into the sugar industry, assuming political targets are

met, will be a rea l fillip to the e conomy. The e lec tora te will be

composed as long as it is satisfied the Interim Government is

putting in place the necessary structures for the elections to be

held. It would even be prepared to allow it some leeway.

However, the watchwords are commitment and movement.

Even were the economy to worsen, the electorate world

rema in quiesc ent as long as it b elieved the Interim Government

was genuine about delivering elections within reasonable

timeframes.

In hindsight the military and the Interim Governments legal

advisers, and by that reference is made to those in the

shadows behind the Interim Attorney-General, would have

been bette r advised to ha ve a brog ated the Constitution. The

legal gymnastics one is obliged to perform, all the while

chanting the Constitution is intact like a mantra, would test a

contortionist. The d ilemma is tha t the lega l apolog ists and the ir

collaborators in the military wished to depart from the


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Constitution without breaching it. We are still continuing on this

Alic e in Wonderland journey. In the m ea ntime , the Courts are

at once op erating no rma lly as in trying c riminal and c ivil ca ses,

and coming under sieg e a s well. The Chief Justice remains

suspend ed on a s yet unspec ified c harges. The a ppointment of

the Tribuna l to c onduc t the inquiry is still awaited . The Ac ting

Chief Justice was appointed in dubious circumstances by an

improperly c onstituted Jud icial Services Commission (JSC). The

JSC for its part c ontinues to m ake appointments desp ite the

fact that its status may well be suspect. And appointees of the

new regime are hearing challenges to the legal order post 5

Dec em ber 2006. It is a very untidy sta te of a ffa irs with little

prospec t o f ea rly resolution.

This ret rospec t ends where it b eg an: with the milita ry. The genus

of the 5 December 2006 coup lies in the first one perpetrated

a lmost two dec ades earlier. It is d isingenuous for Sitiveni

Rabuka to distinguish his on the basis it was some how

intrinsically different whatever the reason. No coup against a

democratically-elected Government can ever be justified,

unless the regime concerned is inflicting genocide or some

other heinous c rime aga inst its own p eo p le. The present Interim

Government may well acquire legitimacy in the Courts through

the doc trine of a c quiesc enc e, but it would have estab lished a

new leg a l order in the process. To c ontinue to assert tha t the


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Documents

MYTHIC CONSTITUTIONALISM: WHITHER FIJI’S COURSE IN JUNE, 2007? - Rt Joni Madraiwiwi