Coup immunity takes precedence over new Fiji Constitution - Powell

Updated 23 August 2013, 11:33 AEST

Fiji's new constitution release yesterday by the military government has received mixed reviews.

The document includes significant changes to the electoral system paving the way for elections before the end of September next year.

It includes a Bill of Rights that offers the right to work, the right to food, the right to housing and the right to education.

Under the constitution there will be a single-chamber, 50-member Parliament, with elections every four years.

Regional constituencies have been abolished in favour of one national constituency with members elected by proportional representation.

Presenter: Geraldine Coutts

Speaker: Randell Powell SC, former appeal panel judge that in 2009 found the 2006 Fiji military illegal

POWELL: There are a couple of fundamental problems with it in my view. Look, the first is one of legitimacy. The preamble of the Constitution begins we, the people of Fiji, but the author of the document is the current regime. The draft Constitution has not been put to a referendum. It's been imposed on the people.

Now, this is not a mere matter of words. Constitutions are instruments of consent. The rules that people consent to be governed by and again, it seems to me it's obvious this Constitution or proposed Constitution has no legitimacy, which leds to the second point. Section 2 says that the Constitution is the supreme law of the state and interestingly in sub-Section 5 it says that this Constitution cannot be abrogated or suspended by any person other than in accordance with Chapter 11 which basically provides that it can only be amended by a 75% vote in parliament.

But, of course, you'll recall that the last Constitution, well as of any Constitution was a supreme law of the state and the last Constitution could only be amended by a super majority vote of both Houses of Parliament. But the words of the Constitution are no protection against men with guns.

COUTTS: All right. Now, the abrogation of the Constitution is an interesting one, considering that the Constitution was abrogated by this interim government. But going back to your panel hearing. This government's not legitimate anyway, because your ruling back in 2009 said that the coup was illegal and so therefore the government illegal?

POWELL: That's true. So this is a document being imposed upon the people by an unlawful regime.

And, of course, it leaps out from the Constitution because of Chapter 10, which deals with immunity. The poison of what was done in 2009 with reported abrogation of the Constitution, subsequent rule by decree has found its way into a whole chapter in this new Constitution.

Chapter 10 provides that all those involved in the coup of 2006, and the abrogation of the Constitution in 2009 and the unlawful regime since have and I quote "absolute and unconditional immunity from prosecution". Immunity that they gave themselves in various decrees in 2009 and 2010. And this document says those decrees are to continue in existence and may not be revoked.

And then Section 158 of this document provides that not withstanding anything in this Constitution, this immunity shall not be reviewed, amended, altered or appealed or revoked. So if there is a supreme law, it's this immunity. This immunity and the immunity decrees ?? take precedence over the Constitution. I mean this very provision by itself makes it clear that this is not a document of the people. It's a document by the current regime.

COUTTS: How much credence can we place in this. I mean is there legal precedence where a Constitution cannot be tampered with anywhere or anyhow. I'm sure that there are provisions that changes in the future or changes of the time will allow for a tweaking and rewriting somewhere along the line, but you're saying this can't happen?

POWELL: Well. I don't know of any Constitution that cannot be changed, because, as I say, by definition practically without stating it as it does in Section Two, the Constitution is the supreme law and he's part of the law, which takes precedence over the supreme law. 

I mean the Constitution itself, I don't have a great deal to say about it. It's a model of rights and freedoms and in fact, picks up many provisions of the abrogated Constitution. I mean, for example, both Constitutions provide that the Prime Minister can only be dismissed if he or she loses a vote of confidence in parliament. But what would such provisions in the light of Fiji's recent history. The Prime Minister in 2006 did not lose a vote of confidence in the parliament, but he was dismissed anyway.

I mean the background in Fiji is that the Constitution is only the supreme law until someone in the military decide otherwise. I mean every coup in Fiji has been a body blow to a functioning democracy, because the coups demonstrate that the Constitution are not the supreme law that are subject to the will of the military.

COUTTS: So the single Chamber 50 member Parliament. Is this also suggesting that whoever's in power at the time, will have greater control and what you've explained so far is that the military is going to have continuing control into the evermore?

POWELL: Well, I agree with that. There is nothing to, it would make it easier it seems to me for the military man to be elected President certainly. Yes, there's no house of review, that is a problem.

COUTTS: And so, also what you've explained so far is that there will be military control over it, because there is no way or input from the people into this, but also the way it's set out is that the military control over future governments will be ever present?

POWELL: Well, I think all future governments would be cognitive of the fact that the military will be looking over their shoulder, so they will be careful in what they do, lest we have another coup. I mean that's the continuing problem and the more coups we have, and the less stable the Constitutions, and the shorter the periods of the Constitutions endure, the more difficult it is to have a functioning Constitution.

I mean it's all about political context. I mean in 1936, in the midst of the Great Terror, the Soviet Union proclaimed a new Constitution, which was hailed as the model of rights and freedom, but the political context was a one party dictatorship and anyone seeking to avail themselves of the Constitution's theoretical protections would have ended up in the gulag or dead. Now, the people of Fiji may not have that to fear, but they will know and their elected representative in it will know that this new Constitution will not protect them from the military. And in light of that, well we'll have to see whether the document proves to be worth more than the paper it will be written of. But for that to happen, the military will have to completely disengage from the political process.

COUTTS: Are there any positives from this particular stream of thinking that can be gained, because the interim government has declared that they have put an end to the coup culture. There will be no more coups. Does this Constitution in anyway support that?

POWELL: Well, it does in this sense. Apart from the Chapter 10, which is the immunity provisions, which are entrenched and are somewhat disturbing, Apart from that, there is no reference to the military, well, the military aren't entrenched in the Constitution. They are references, of course, to the military the President is to be the ceremonial head of the military forces, but that's unexceptional. But structurally no. There's not I find any great problems with the Constitution. You could pick this Constitution up and put it somewhere else and you'd think, well, that is quite a good model for a Constitution.