Analysing constitutional immunity provisions
AS Fiji continues its pathway to the restoration of democracy and the rule of law, we struggle with repulsive constitutional immunity provisions. This article reviews the effectiveness of such provisions or whether there is a way around it.
Background
The effectiveness of constitutional immunity provisions in protecting coup perpetrators varies depending on the specific legal and political context in which they operate. Such provisions can provide certain legal protections for individuals, including leaders or members of government, shielding them from prosecution or legal accountability for actions taken while in office.
The immunity provisions in the 2013 Constitution (Chapter 10) begin with the declaration that the immunity provisions in the 1990 Constitution continue in force.
1990 Constitution
Section 64 of the 1990 Constitution provides immunity to the 1987 coup leader, the military, police, prison, and others. The main players in the 1987 coup were the executive arms of the government, charged with enforcing the law. Thus, the immunity for being part of the illegal takeover of the government, which included the civil service.
The period covered under the immunity provision is specific to the events on 14 May and 25 September 1987 for the coup leader. As for members of the discipline forces it covers the period from 14 May to December 1987.
Limitation of Liability for Prescribed Political Events Act 2010
The immunity provision in the 2013 Constitution also includes the continuation of the Limitation of Liability for Prescribed Political Events Act 2010 (which was originally made as a Decree but was renamed an Act). The significance of the Act is that it defines both prescribed political events and prescribed persons protected by the immunity.
Further Immunity: Section 157 of the 2013 Constitution
In essence, this provision clarifies that while immunity may be granted in certain situations, it does not protect individuals from prosecution for committing offences listed in the specified sections of the Crimes Act 2009.
The section outlines the granting of absolute and unconditional immunity to specific categories of individuals in Fiji, regardless of whether they are acting in an official, personal, or individual capacity.
These categories include highranking government officials, members of the military and police forces, members of the judiciary, civil servants, and others holding public office.
The immunity covers protection from criminal prosecution, civil liability, or any other form of legal action in various types of proceedings, including legal, military, disciplinary, or professional ones, for their involvement in the government from December 5, 2006, until the first sitting of the first Parliament elected after the commencement of the Constitution.
However, this broad immunity has exceptions. It does not shield individuals from prosecution for acts or omissions that constitute offences listed in specific sections of the Crimes Decree 2009, as detailed in the section. These sections cover a range of criminal activities, implying that immunity does not extend to selected criminal offences. The specific sections of the Crimes Act are as follows:
Sections 133 to 146: Bribery and related offences
Section 148 to 236: Secret Commissions and Corrupt Practices; Forgery and Related Offences; Offences Relating to Coin and Currency Notes; Perjury and False Statements and Declarations; Other Offences Relating to the Administration of Justice; Rescue and Escapes and Obstructing Court Officers; Miscellaneous Offences Against Public Authority; Offences Relating to Marriage; Sexual Offences; Prostitution Offences; Abortion Offences.
Section 288 – 351: Offences Against Property; Theft and Other Property Offences; Fraudulent Conduct; Other Miscellaneous Offences; Accessories After the Fact, Financial Information Offences.
Section 356-361: Offences Causing Injury to Property.
Section 36 to 374 and 377 to 386: Nuisances and Other Miscellaneous Offences.
Notably, this means that sections 237 to 286: Offences Against the Person, including murder, assault, and offences against liberty, which are not in the exemption list, are covered in immunity. This is to ensure that those complicity in offences against the person or violations of human rights are not entrapped and are shielded from prosecution.
In summary, section 157 provides extensive immunity to certain individuals involved in the Fijian government. However, it also sets selective limitations by excluding specific criminal offences in the Crimes Act 2009, as provided above.
Immunity for the coup or the illegal takeover of the government is understandable when the change of government is complete. Once the new regime is in control, the coup is over. Thus, immunity is needed to facilitate the transition back to democracy.
However, extending immunity to shield personal abuse and criminal acts is against the rule of law and constitutional governance.
This provision is abhorrent as it is against the tenor of the Constitution and, therefore, unconstitutional. The key points of interpretation are as follows: Absolute and unconditional immunity
The immunity granted is described as absolute and unconditional, meaning it provides total protection from legal consequences for any actions taken during the specified period, regardless of their nature or severity.
Scope of Immunity
The immunity covers both official and personal capacities of individuals who held specific office or were involved in the government during the designated time frame. It extends to protection from criminal prosecution, civil liability, and any other legal, military, disciplinary, or professional proceedings.
Time frame
The immunity applies to actions taken from December 5, 2006, until the first sitting of the first Parliament elected after the commencement of the Constitution. This sets a clear boundary for the period during which individuals are shielded from legal consequences.
Irrevocability
Immunity is described as irrevocable, indicating that it cannot be undone or revoked, even by subsequent legislative or constitutional changes. However, the extent of these protections and their effectiveness in shielding individuals from consequences for coups can be influenced by several factors.
Unconstitutional immunity provisions
It is important to consider whether a constitutional provision can be unconstitutional or for that matter an unconstitutional constitution. Constitutionalism is about limits and aspirations, whether there are implicit substantive constraints on formal constitutional change is a question that challenges us.
Edmund Burke said, "to enable us to correct the constitution, the whole constitution must be viewed together; and it must be compared with the actual state of the people, and the circumstances of the time." The Constitution in Chapter 1 states that Fiji is a democratic state founded on respect for human rights, freedom, and the rule of law: good governance
including the limitation and separation of powers amongst other things.
As the supreme law section 2(2) states that "subject to the provisions of this Constitution, any law inconsistent with this Constitution is invalid to the extent of the inconsistency."
On its face the immunity provisions in the Constitution are contrary to democratic principles and the rule of law and arguably, Chapter 10 on immunity is unconstitutional.
Why immunity
The immunity provision to shield the coup perpetrator, discipline forces and the civil service is understandable to facilitate the transition from an interim government to a democratic one. However, further immunity under section 157 is problematic.
As discussed above it stretches immunity from 2006 to 2013 covering both official and personal liability. This is not only unconstitutional, but repugnant to the rule of law. The more one dwells on this provision the more one is staggered by the contemplation of the range of its operations and the scope of matters it shields from prosecution.
An unamenable constitutional provision adopted by usurpers of power and forced upon the people can hardly be viewed as a manifestation of consent by the people, particularly if it is contrary to the rule of law.
It is unacceptable to have such immunity provisions irrevocable and shielded from judicial review, which is also contrary to the constitutional powers of the courts.
The way around immunity
It is common knowledge that the 2013 Constitution was forced upon the people of Fiji and lacks legitimacy through consensus or the will of the people. The ultimate source of constitutional power rests in the people or the constituent power. Put more bluntly Oliver Holmes (as Justice Holmes) said "when the people want to do something I can't find anything in the Constitution expressly forbidding them to do it, I say, whether I like it or not: God-dammit it, let'em do it."
While constitutional immunity provisions can be powerful barriers to holding individuals accountable for their actions during a specified period, there may be certain ways around such immunity, depending on the legal and political context:
1. Challenging the constitutionality: If there are doubts about the constitutionality of the immunity provision, individuals or groups may challenge it through legal avenues. This could involve arguing that the provisions violate fundamental principles of justice, human rights, and the separation of powers.
2. International law and human rights: Immunity provisions may be subject to international law and human rights standards. If actions covered by immunity provisions violate international law or human rights norms, international bodies or tribunals may assert jurisdiction and hold individuals accountable, regardless of domestic immunity.
3. Traditional justice mechanism: Some countries employ transitional justice mechanisms, such as truth commissions or special tribunals, to address past human rights abuses, including those shielded by immunity provisions. These mechanisms may provide alternative avenues for accountability and justice.
4. Political will and public
Pressure: Strong political will and public pressure can sometimes overcome immunity provisions. If there is widespread public demand for justice and accountability, government may be compelled to repeal or amend immunity provisions, or it may face pressure to pursue accountability through other means.
5. Legal loopholes or exceptions: In some cases, legal loopholes or exceptions may exist that allow for the prosecution or accountability of individuals protected by immunity provisions. For example, immunity may not cover certain international crimes or may be waived under specific circumstances.
6. Future constitutional amendments: Immunity provisions are not necessarily permanent. They can be amended or repealed through constitutional processes. If there is sufficient political support, future constitutional amendments could remove or modify immunity provisions, allowing for accountability for past actions.
7. International pressure and sanctions: International pressure, including diplomatic pressure or sanctions, may be exerted on governments to address past human abuses, regardless of domestic immunity provisions. This pressure can sometimes lead to changes in policy or legal frameworks.
Each situation is unique, and the effectiveness of these approaches will depend on various factors, including the strength of legal institutions, political dynamics, and international involvement. The onus is on "we the people" to petition the government, to protest or whatever it takes to review the 2013 Constitution and repeal the repugnant immunity provisions.
■ DR JALESI NAKARAWA is a legal scholar and law lecturer at Fiji National University. The views expressed in this article are the author’s own.