MYTHIC CONSTITUTIONALISM:
WHITHER FIJI’S COURSE IN JUNE, 2007?
Paper presented at the Workshop The Fiji Coup – Six Months On, organized by the State, Society and Governance in Melanesia Program and the Pacific Centre, at the Australian National
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 Commander’s rhetoric. In his remarks
he stated inter alia:
“… The RFMF could have carried out unconstitutional and illegal activities, but had not done so and will not do 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 in adherence to the spirit of the law and the Constitution…”
There appear to have been three main reasons for the military intervention: alleged widespread corruption and abuse of office reflected in the military’s oft-repeated threat to clean up’ the Government; the barely disguised hostility between the Government and the military over the former’s 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 Commander and his close coterie of advisers saw the military as the ultimate guarantor of the peace, echoed constantly in public statements and private discussions. With the military arrogating for itself the role of guardian and protector, the Police Force has become increasingly demoralised. The reformed and rebuilding of morale implemented by Commissioner Andrew Hughes have dissipated gradually since his departure in November last year.
The military has blurred the boundaries between policing and security roles at the cost of Police independence and autonomy. Paradoxically, the business community has been quick to embrace the expanded reach of the military. They welcomed the presence of checkpoints and the involvement of the military in policing as having a salutary effect on crime.Such tunnel vision is understandable but shortsighted. There has been a real undermining of the rule of law in the actions of the military. Neither has crime diminished, it has simply relocated
elsewhere. The breaches in human rights since the coup have been on a wide scale culminating in the deaths of 41 year old Nimilote Verebasaga and 19 year old Sakiusa Rabaka. There have been two related objectives.
The first was to intimidate and frighten opponents of the military. In this regard, skills acquired in soldiering abroad have been deployed for such ends. The second objective was to consolidate their position further by assuming policing in functions in the months after the coup.
They readily attended to inappropriate calls for their intervention from many Indo Fijians, and other citizens frustrated or dissatisfied with the level of police investigations on their behalf. The helplessness of the ordinary citizen was heightened by the inexplicable stance assumed by the Fiji Human Rights Commission in (FHRC) favour of the military. That has continued to the present day.
It was the Director of the FHRC who issued an elaborate justification for the military’s actions of 5 December 2006. One that has emboldened and sustained the military in its peculiar understanding of what adherence to the Constitution means. 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, the military played a generally useful if somewhat vocal part in general debate on issues of national interest and concern.
There is little doubt this helped to moderate the Soqosoqo Duavata Ni Lewenivanua (SDL) Government’s inclination 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 consisted of the Fiji LabourParty and a large majority of the Indo-Fijian community, scarred by the events of May, 2000 and by sense of alienation from the SDL Government because of some of is policies. A majority of the minority communities also felt likewise i.e. marginalised 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 judiciary and the professional classes as well as a portion of the private sector.
The Interim Government formed by the Commander, after his appointment by the President as Interim Prime Minister on 5 January 2007, is revealing. While multiethnic in character, it has
limited Fijian support. Those Fijian politicians who are in the Interim Cabinet were unsuccessful candidates at the last elections in May, 2006.
There is only one member of the SDL Government represented and he is there by default. The Commander may well have had good reason for excluding the ousted SDL Government, but it undermines his legitimacy. The Interim Government is unfortunately perceived by many in the Fijian heartland as the handmaiden of Mr Chaudhry. Many Fijians are convinced this was an indo Fijian coup.
Still others, think it was a Muslim coup because of the association with a few prominent Muslims. These perceptions, even if mistaken, pass for reality from which conclusions are drawn. The actual explanation is less inflammatory: the interest of various individuals and groups happen to coincide with the militaries. It was both opportunistic and principled, a few believing they were acting in the Nations interest. The effect the Commander has had in the short time he has had centre stage is profound. No other Fijian Leader, Rabuka and Apolosi R Nawai included, has so directly confronted the Fijian establishment and remained seemingly unscathed.
He has in turn scorned the SDL Government, the Methodist Church 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 Executive Officers (CEOs), Statutory Corporation CEOs and members of Statutory and Corporation Boards, the Commander has guttered the Fijian middle classes. These are the ranks from which Fijian leaders would be expected to 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 refusal to endorse the President’s nominee for Vice President on 11 April 2007, demonstrates further the Commander’s revolutionary status in the cataclysmic sense of the term.
The BLV itself is in many senses a symbol. In treating it in such a cavalier and contemptuous manner, the Commander exposed the facade of its authority. This has compounded the erosion of traditional authority structures. That may not be such a bad thing, replete 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 multicultural,
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 beginning of the facilitative measures to be taken. They will not in themselves assure the desired result. Demographics and continuing emigration by other communities mean an ever increasing indigenous proportion of the population. Irrespective of how the electoral boundaries are drawn, it is likely that a
Fijian- dominated political party will form the next elected Government.
What will the Commander and his fellow travellers do then? Many Fijians remain enamoured with the concept of the Indigenous Claims Tribunal and the Qoliqoli legislation. It resonates with what they believe indigenous rights comprise. As or rationale of the Reconciliation, Tolerance and Promotion of National Unity Bill, that has been made more topical in the light of the military’s potentially treasonous conduct on 5 December, 2006.
In its engagement with the Eminent Persons Group from the Forum and the European Commission, the Interim Government has stipulated a three year period as the timeline for elections. This to be preceded by a census and an electoral re distribution on non-ethnic lines. Reading 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 appear to accommodate the proposals of our neighbours and friends.
The longer the period to elections, the less likely the Commander and Mr Chaudhry feel the SDL will return to the treasury benches. We have already canvassed the reasons
why this reasoning is flawed. In fact, the apologists for the coup among civil society support the calls in some quarters that there be less haste for elections.
They argue other initiatives must first be implemented to ensuring a more equitable society in order to have a solid foundation for democracy. This presupposes hat there is some requirement for social engineering of sorts to onstruct a democratic frame work. The irony that these
measures are to be implemented by usurpers with a dubious andate, which are better left to an elected government, is lost on those aplogists.
The centre piece of Interim Governments Legislative 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 will be ruling in due course 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 capacity of the Interim Government to enact such legislation is a valid
consideration.
An Executive whose mandate rests not in the popular will but on the force of arms has no authority to do so. The Commander relied on the doctrine of necessity to sanction the actions taken by the military on 5 December 2006. It is trite law that the doctrine is of limited application and only 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 principle still applies because the Interim 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 egregiously asserted since December 2006.
Despite these misgivings, the stated intentions of the military, now championed by the Interim Government to ‘clean up’ the Government, statutory bodies and corporations have
resonated widely. There is a profound 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 at fault. The mistake of a few was a close association 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
people have been proceeded against. This from a military that 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 Funds and the recent deaths
Verebasaga and Rabaka in military custody.
The military cannot demand transparency and accountability from others, while resisting the application of a like standard for itself to its credit, the Interim Government has withdrawn the
Emergency Regulations (the Regulations) with effect from midnight 31 May, 2007. Although we are not privy to the military’s intelligence reports, their sense of insecurity was obviously acute. Given their monopoly on ammunition and ability to react rapidly to any situation, the continuation of the Regulations appears to have been to reinforce their position vis á 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 wider community (as represented by key
parties in civil society and the private sector). What is envisaged at the end of several months consultations is a charter that reflects the broad principles upon which our future
governance is to be based.
The concept per se has some merit. However, the structure is cumbersome and there is a very real doubt that the voices of ordinary people will be heard. There are also continuing
concerns about the legitimacy and mandate of those convening the gathering. Is this a genuine effort at drawing the people of Fiji together? Or is it merely an attempt by the Interim
Government and its cohorts to cloak themselves in some mantle of popular acclaim?
Moreover, the Interim Government has given little in return about from the withdrawal of the
Regulations. There appears to be divided opinion on this issue, although my sense is that the doubters appear more persuasive. The process is as critical as the outcome. However,
one has not heard anything from either the Commander 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 reconciliation would have gone begging.
Where the military and the Interim Government may have gone astray is in the scale of their objectives. In a relatively short space of time, whether it is two, three or five years is irrelevant,
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 economy.
To envisage the beginnings of greater interethnic integration several years hence seems to be an 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 alienated Fijian religious leaders who have great influence over their followers. They will be reinforced by upwardly mobile professionals and traditionalists offended by the diminution of affirmative action policies. Together they will either distance themselves or circumscribe involvement from the Interim Government’s policy of engagement.
As for inter-ethnic relations, this coup has seen little of the overt racism and tensions that followed the previous coups. The Fijian community has accepted the overthrow in sullen silence. Many Indo Fijians see it as a measure of poetic justice for the indignities they suffered previously. Some of their leaders have expressed support for the military’s actions. It is a reflection of how little we know each other. How will this play out in the future? What will probably happen, is that there will be no inter ethnic reprisals but Fijians will more strongly endorse indigenously-oriented policies in the government they elect.
Political unity will not be the problem it has been, because of the preponderance of Fijian numbers. The key to the Interim Government’s survival rests on two factors: the performance of the economy and the holding of general elections. Should the former improve by the end of the 2007, the pressure on the interim Government will ease slightly. However, this eventuality is debatable at this point. The public 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 injection of funds into the sugar industry, assuming political targets are met, will be a real fillip to the economy.
The electorate 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 remain quiescent as long as it believed the Interim Government was genuine about delivering elections within reasonable
timeframes. In hindsight the military and the Interim Government’s legal advisers, and by that
reference is made to those in the shadows behind the Interim Attorney-General, would have
been better advised to have abrogated 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 dilemma is that the legal apologists and their
collaborators in the military wished to depart from the Constitution without breaching it. We are still continuing on this ‘Alice in Wonderland’ journey.
In the meantime, the Courts are at once operating normally as in trying criminal and civil cases, and coming under siege as well. The Chief Justice remains suspended on as yet unspecified charges. The appointment of the Tribunal to conduct the inquiry is still awaited. The Acting Chief Justice was appointed in dubious circumstances by an improperly constituted Judicial Services Commission (JSC). The JSC for its part continues to make appointments despite the fact that its status may well be suspect.
And appointees of the new regime are hearing challenges to the legal order post 5
December 2006. It is a very untidy state of affairs with little prospect of early resolution.
This retrospect ends where it began: with the military. The genus of the 5 December 2006 coup lies in the first one perpetrated almost two decades earlier.
It is disingenuous 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 crime against its own people.
The present Interim Government may well acquire legitimacy in the Courts through
the doctrine of acquiescence, but it would have established a new legal order in the process. To continue to assert that the takeover of 5 December 2006 constituted an adherence to the
Constitution is not only absurd but delusional.
The only gratifying aspect of this travesty, absent all the elaborate justifications, is the belated recognition by many Fijians that the only appropriate habitat for the military is the barracks. There being no external security threats as such, the military is now a law unto itself.
Any meaningful attempt to prevent any further coups must deal with this issue. The sense of puissance conferred by the possession of arms is an intoxicating feeling we must cure. It not we are destined to travel this weary path repeatedly in the future, periodic hostages to the messianic ambitions of one military officer after another.
The ordinary people of our country, whose dreams are for the betterment of themselves and their families, deserve more.
Joni Madraiwiwi
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