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The report of the Fiji Human Rights Commission (‘the Commission’), ‘The Assumption of Executive Authority on December 5th 2006 by Commodore J.V. Bainimarama, Commander of the Republic of Fiji Military Forces: Legal, Constitutional and Human Rights Issues’, is a remarkable apology for the military regime in Fiji. There are two elements in it that lead to this conclusion. The first (which has two parts) is the assertion that:
The RFMF overthrew an illegally constituted, unconstitutional Government which was acting against the public interest in violation of public security and public safety protections in the Constitution.[1]
This amounts not only to a condemnation of the previous (civilian) government as illegal, but also to an endorsement of a political role for the Republic of Fiji Military Forces (RFMF). The second element is the assertion that the overthrow of the government was not merely in the interests of the country, but was legal, under the doctrine of necessity.
Both of these arguments are contentious. The first because it is not the role of the military to act as a political arbiter – it is for the courts to decide if a government acts improperly or illegally (or indeed is illegally or irregularly constituted); the second because, while the doctrine of necessity provides limited legal justification for certain acts in defence of the constitutional order or the stability of a country, it does not allow for military coups against de facto or de jure governments.
The failure of the Commission to criticise the coup – indeed its endorsement of it – is a dangerous development in an already difficult situation fraught with risk to the future stability of civil society. If the Commission cannot bring itself to champion the paramountcy of the rule of law, and instead encourages the military to adopt an active political role, then the constitution of the country is in serious, and probably long-term, trouble.
While the origins of the 2000 coup can be traced to the 1987 coups, the circumstances of the 2006 coup are relatively clear.[2] In the words of the Commission’s report:
In December 2006 the Commander of the Republic of the Fiji Military Forces, Commodore J. V. Bainimarama, announced that he had assumed executive authority of Fiji, President of Fiji, and declared a State of Emergency. He advised that the country would, in the meantime, be run by a military council, but the ministries would continue to function under their respective Chief Executive Officers.[3]
The situation was criticized overseas and in Fiji, and the Commission issued its report largely in response to requests for advice from those unsure of the legal status of the military coup.[4]
In response to a the number of requests from members of the public, on 4 January 2007 the Commission’s director, Dr Shaista Shameem, issued a paper outlining the Commission’s view of the legality of the Commodore’s actions. The Commission’s stance is apparently in favour of ‘security, defence and well being’[5] at the expense of constitutional orthodoxy or legitimacy. But whether or not this army-imposed stability can be maintained in the longer term, in the absence of respect for the rule of law, is unclear. The history of Fiji since 1987 suggests that it may not be possible.
It is curious that the coup should be categorized by the Commission as a ‘constitutional re-arrangement’.[6] While the Commission reflects only one viewpoint, it is a statutory body, and its pronouncements will have influence within Fiji, if not abroad. The Commission should have made it clear that the constitutional order cannot be so readily changed, even if the doctrine of necessity does legitimate otherwise illegal emergency action. Admittedly, it does note that a constitution may not easily be abrogated, but it too readily allows the military the discretion to overrule – or overthrow – the civil government. It concentrates on the positive role the military is expected to play:
For constitutional bodies such as the Commission, the military currently exercises effective authority in Fiji. The RFMF is now reportedly set on a course to destroy corruption, introduce good governance and accountability, and prepare the country for census and elections. The Commission will monitor the process by which this is being done through the appropriate provisions of the Constitution.[7]
Good governance should begin at the top – and include allegiance to the principles of the rule of law, which includes the subordination of the military to the civil authority. So, what did the Commission have to say about the legality of the commander’s actions in terms of necessity, civil government, emergency action and the role of the military?
[1] Fiji Human Rights Commission, ‘The Assumption of Executive Authority on December 5th 2006 by Commodore J.V. Bainimarama, Commander of the Republic of Fiji Military Forces: Legal, Constitutional and Human Rights Issues’ (Fiji Human Rights Commission, Suva, 2007), p.31 [hereafter “Fiji Human Rights Commission”].
[2] For a discussion of the origins of the 2000 coup, see, Cox, N. 2001. ‘Republic of Fiji v Prasad: A military government on trial’, New Zealand Armed Forces Law Review 5–9.
[3] Fiji Human Rights Commission, p. 1.
[4] From the original 1987 coup onward the extent to which legal arguments have been used to provide colour of right to what would, in most countries be instantly dismissed as illegal, has been remarkable.
[5] s 94 of the 1990 constitution and imported into s 112 of the 1997 constitution.
[6] Fiji Human Rights Commission, p. 28.
[7] Fiji Human Rights Commission, p. 28.