Postdate: 20/ 01/ 2004
The public “dispute” over whether the current Commander of the Fiji Military Forces, Commodore Frank Bainimarama’s term of office will be renewed for another five years had been in our news media for over a year. What seems a straight forward simple issue in terms of the law appears to be complicated? This is so because there are other very sensitive unresolved issues tied around this dispute and that keep cropping up over time as some key players have their say.
In this article I look at the background of some of these related issues. This is important even though the major protagonists in the dispute – Frank Bainimarama and his supporters in the Army, and the Government led by Prime Minister Qarase (especially the Ministry of Home Affairs officials and Attorney General Bale) have recently decided not to say anymore in public. Other Parties of less consequence have joined in this dispute on either side and this only enhanced the intensity of public interest.
According to the relevant laws (Section 112 (2) of the Fiji Constitution and Section 3(3), of the Fiji Military Forces Act Cap 81) the Commander of the FMF is appointed by the President on the advice of the Minister for Home Affairs. That should be uncontroversial, but it is not! It is ironical that in July 2003, Permanent Secretary for Home Affairs, Jeremaia Waqanisau had said publicly (Fiji Times 06/06/03) that under the FMF Act (quote) “the head of the Military was entitled to two five year terms”. If the Commander has this “entitlement”, either by law or precedent, then why have Waqanisau. Qorinisai Bale, since then being implying in public statements that it will probably not be renewed? Since June 2003, Waqanisau has had an officials committee considering this “simple” question who to recommend to Home Affairs Minister Joketani Cokanasiga.
The Commander had made it clear back in April 2003 that he wanted to serve another second five years term. Early in April 2003 (Daily Post 09/04/03) there had been a meeting between Commander Bainimarama and some of his senior officers where (it was reported) he told them that he had been informed that the Government had no intention of renewing his appointment. It was then considering a Cabinet Minister, two senior civil servants and two government backbenchers (all former FMF officers) as possible replacements. Recent History To have a better understanding of why the Qarase government began to have second thoughts about the ‘loyalty’ of Bainimarama, we need to take some steps back in recent history. Bainimarama began to carve out a more independent position of the Interim government (that incidentally he had installed in June 2001), after the High Court Judge, Anthony Gates, ruled in November 2001 that the 1997 Constitution had only been suspended by Bainimarama’s purported abrogation of it, and came back into force after the release of the hostages. It seemed Bainimarama and most of his senior officers became convinced then that they had to uphold the rule of law and accept the logical consequence of an appeal to the Court of Appeal.
According to a report by Margaret Wise (Fiji Times 20/01/01), Frank Bainimarama and Colonel Ratu George Kadavulevu were emboldened to tell President Ratu Josefa Iloilo (in the presence of Interim Prime Minister Qarase and some of his stunned Cabinet colleagues), that if the Court of Appeal in March 2001 upheld Justice Gates ruling, the FMF would support the recalling of Parliament and the formation of the government of national unity. Qarase and his colleagues of course had other plans. Having been thus been forewarned about the Commanders preference, the Prime Minister made a carefully veiled statement to the Court of Appeal in March that his Interim Cabinet would ” respect the ruling and use its best endeavor to return Fiji to Constitutional government”. (Geoffrey Robertson QC had objected to the latter part of this statement in Court because he clearly read its true meaning). Mr. Qarase and his supporter’s later out maneuvered Bainimarama at the Great Council of chiefs meeting called after the delivery of the Judgment. The division in the Council of Chiefs was papered over by a public statement (written by a well known Qarase adviser) after the meeting which said the Chiefs accepted the judgment of the Court but supported the calling of a General election in August. (The BLV in fact had been unable to agree on a resolution), Frank Bainimarama, was nevertheless, compelled to support this direction, bolstered by statements from the Australian government and others, who believed that it was the most practical way forward in the given circumstances.
After the winning of the General Elections, and the political and international legitimacy that it needed, the new SDL/CAMV coalition government decided that its political interest in fostering its concept for Fijian reconciliation, political stability and unity had to prevail over Bainimarama and his supporter’s notion of the rule of the law. The new government wanted the acrimonies of the recent past to be put behind as soon as possible. This ultimately meant that the Commander will have to be removed because he wanted to enforce the rule of the law in the FMF. The other event that had traumatized Commander Bainimarama into a firm believer in the rule of the law was the mutiny by a section of the Counter Revolutionary Warfare Unit (CRW), on November 2nd, 2001. Bainimarama narrowly escaped death or serious injury. He was also convinced by that experience that all the rebels must be Court martialled and punished severely, and also those civilian and political leaders who had plotted and instigated the seizer of Parliament and the mutiny. Although the mutiny had aimed to take over the FMF command and depose the Interim government as well, ironically some of these alleged mutiny plotters and George Speight supporters that Bainimarama wants to be convicted in Court are now strong allies of the Qarase led government. Some were rewarded with overseas diplomatic appointments. The CMAV Party, Army Spokesman Neumi Leweni, alleges, is a strong influence on the security views of the Ministry of Home Affairs officials. STRATEGIES The SDL government had tried over the last two years in various strategies to get rid of Commander Bainimarama. First in March 2002, the Government nominated Bainimarama to be a candidate to command a United Nations peace Keeping Force. He was specifically bestowed with the title of “Rear Admiral” to beef up his Curriculum Vitae for the position. This turned to be a fiasco and embarrassment to Bainimarama and the Government because the position went to another person. It appears that Bainimarama had since demoted himself back to Commander.
Then in March, 2003(Fiji Times 15/03/03), the Permanent Secretary of the Prime Minister’s office, Joji Kotobalavu announced that Bainimarama had met Prime Minister Qarase and had been asked to consider a diplomatic posting overseas as an option. It is unclear what Bainimarama said at that meeting in response to the offer but publicly denied the offer was made. However, he told a Radio Fiji interview (Fiji Sun 14/04/03), a week later that he was concerned about certain politicians ‘who were working to destabilize the country’. In this he was backed by the former Commander and the current Council of Chiefs chairman, Ratu Epeli Gaunilau (DP 11/04/03). By this time the Commander and his officers became concerned that certain officers in the Home Affairs department, with the backing from Attorney General, Qoroiniasi Bale, had briefed Ratu Iloilo about how to grant pardons or reduce sentence to the rebels CRW members that had been recently Court martial and sentenced. The SDL government obviously felt threatened by the Commander and his spokesman WOC Neumi Leweni.
In the news media they called for the speeding up of police investigations and prosecution of well known “tainted” political leaders, who they believed were behind the CRW support for George Speight in Parliament and the plotting of the mutiny at QEB on November 2, 2001. Leweni said the FMF was concerned about the non prosecution of politicians who had instigated the criminal events of 2000 because it would adversely affect the integrity of the Military Court martial sentences.
The view of those who were trying to influence the President probably was that the CRW convicts be granted pardon first so that it will be easier for the Government to make the case for termination of investigations and withdrawal of prosecution of some Cabinet Ministers, the Vice President and other prominent allies of the SDL government. Commander Bainimarama then made sure that the FMF was also briefing President, Ratu Iloilo regularly to counter such advice from, and officials in the Ministry of the Home Affairs. Even Dr Goneyali, then the Presidents Permanent Secretary, complained publicly complained that Bainimarama had “chased” him out of a security briefing (DP 8/5/03). Then Bainimarama also announced that he wanted a renewal of his appointment when it expires in February 2004 (Fiji Times 6/06/03). This announcement had public backing from the SVT party, the F.L.P, the Fiji Democratic Party, Mick Beddoes and some NGO’s. The Commander then accused some officials at the Ministry of Home affairs of trying to influence the President to reduce the sentence of the convicted coup supported in the FMF. He added: “These fellows (military security advisers) are actually causing all this trouble. I want to say the army has no problem what so ever with the government of the day, but we have problems with these advisers at the Ministry of Home Affairs.”(Fiji Sun) In August 2003, the RFMF went further and recommended to the government that Permanent Secretary Waqanisau should be removed from his position.
Waqanisau had been on Fijian Radio Station refuting alleged claims by the FMF that the Army had helped to put the SDL government in power. (A claim that is credible if it were true, because had the Army not supported the calling of a General election in 2001, the SDL would not have had the security leg to stand on.) In April 2003, Attorney General, Qoriniasi Bale was compelled to deny that there had actually been a directive from the President to the army to reduce the sentence of convicted soldiers. This was a half truth because Bale had given a legal opinion to the Ministry that the President had powers under the FMF Act to grant pardon or reduce the sentences. This was a wrong legal advice because the prerogative of the Mercy Commission, established by the Constitution had taken over the jurisdiction to advise the President on such matters. But there was no directive from the President because Commander Bainimarama had advised the President to reject this advice for security reasons. This compelled the Attorney General to go to Cabinet and get support for the drafting of the legislation to establish a Parole Board, under which he alone will decide on recommendations from the board on the reduction of sentences or pardons for those already in jail, or those still to be put on trial and sentenced. Cabinet approved the proposal and the draft legislation is yet to be introduced in parliament. In an article in Sunday Times on 15/10/03, I had argued that the current legislation had adequate provision for remission of sentences by the Controller of Prisons and the Minister on grounds already defined by law.
Furthermore, the Prerogative of Mercy Commission, chaired by the Attorney General, was already in place to deal with submissions for pardons and the like from anybody, including the FMF, and there is really no need for a parole board. ADI CAKOBAU In June 2003, Adi Litia Cakobau and her supporters in the Council of Chiefs tried to tackle Bainimarama from another angle. Earlier in March 2001 Adi Litia had seen Bainimarama and asked him to hand over command of the FMF to the Council of Chiefs. He had then refused. A motion was introduced by the Tailevu delegation two years later that all investigations and prosecutions into the Coup should close and all those already convicted be pardoned. The motion was not moved but was discussed and the BLV agreed to uphold the rule of the law. As Chairman, Ratu Epeli explained: “.it was likely to commit the GCC to something that might be embarrassing, but we handled the matter in the chiefly way.” Surprisingly, a Fiji Times Editorial seemed to agree with the view of Adi Cakobau. It said: “The nation wants to move on…there is a feeling that three years should be enough for any inquiry.”
In September 2003, Police spokesman Mesake Koroi said (FT 29/9/03) that Lt Colonel Seruvakula in New Zealand has given seven more names of the people he knew who had plotted the coup and who are still not being charged. Before he left for New Zealand in 2001, Seruvakula had alleged that he had been offered a substantial sum of money by the coup plotters which he refused (i.e. prominent businessmen, politicians, a senator, a senior army officer and a former army officer). They had asked him to mobilize the Third Battalion FIR to support the seizure of Parliament by Speight’s group. In an interview with the Daily Post (8/09/03), Senator Adi Litia Cakobau complained about Commissioner Andrew Hughes’s decision to seek New Zealanders help in police investigations. She said, ” to achieve true reconciliation, the other side has to forgive.most of our nationalist people are still put in jail because of who they are.where in the world have they jailed nationalist?.” During the budget debate in the Senate on 8th of December, 2003, Adi Litia Cakobau further said that, “it is in the best interest of this nation that all investigation on the May 2000 events must close and all political prisoners released. We have to practice what we preach about national theory and reconciliation.” These statements sparked the latest round in the “dispute”. Army spokesman, Leweni responded:” prosecution of offenders had not been solely directed towards nationalist but rather those who broke the law irrespective of their class in society.” Further, Leweni affirmed that Bainimarama wanted to remain at his post until investigations are completed and those implicated brought to justice. A new Commander would be an option “once it is established that political climate is free of tainted politicians…”(DP 19/12/03). He also added that, “It should be known to the public that the government’s intention to pass the responsibility of selecting a new military Commander to the President is the same ploy in trying to reduce sentences for perpetrators of the coup.” Attorney General, Bale was again compelled to say publicly that current investigations were being carried out by the police not the army and it would continue investigations to their completion. He added that the Home Affairs Ministry would provide the non legal implications of the military’s stance.
There is another reason why Bainimarama wants the renewal of his contract. It is the case of his rival, Colonel Filipo Tarakinikini. Court martial statements and submissions of defense lawyers, Apisalome Rabo had referred to Shane Stevens allegations that Naitasiri Chief Ratu Inoke Takiveikata, had given the orders to Colonel Tarakinikini and Colonel Ulaiasi Vatu for the CRW Unit to “secure” the RFMF headquarters on November 2nd, 2003. Tarakinikini had resigned from the FMF in 2001 and gone to New York to take up an appointment at the United Nations security unit. Bainimarama refused to accept his resignation and went to Court. On 14th of August, 2003, the Court of Appeal reversed a High Court Judgment against Bainimarama and ruled that Bainimarama had not been lawfully given the opportunity to provide materials to the President to take into account before accepting Tarakinikini’s resignation.
Further to that, the Court said the Commander was entitled to exercise decisions previously the province of the President, that therefore he had decided lawfully in refusing to accept Tarakinikini’s resignation. This means that with Tarakinikini still legally a member of FMF, he can be charged with the desertion. Tarakinikini’s lawyer, Samuela Matawalu, has appealed the Judgment to the Supreme Court. In a statement (Fiji Sun 19/10/03) Attorney General Bale said under the Extradition Act, a person can be extradited to Fiji for what is deemed to be a political offence and this would also require Court Order for extradition. It is unclear whether Bainimarama has asked the DPP office to lay charges of desertion against Tarakinikini. This probably has to await the result of the Supreme Court appeal.
The FMF vs. the SDL/CAMV government views. It is obvious that there are fundamental differences of views between the Commander and his supporters in the FMF and the government, about the path towards resolving the legal and political consequences of the events of 2000. The FMF view is that professionalism in the FMF must be restored.
The Commander, it is understood, is training a new cadre of young professional non political officers to take over from the current leadership in the near future. Professionalism to him also means all the soldiers that supported and participated in the crimes, including the political leaders who instigated them, should be taken in to Court and severely punished if convicted. The FMF believes it has done what is required in the FMF so the Commander is determined that he must remain in position for the next five years to see through the completion of this task. He must be responsible ultimately for the security and stability of the state under the process of the rule of law that he was instrumental in restoring. The FMF suspects that the SDL government, although it does talk about the rule of the law, is not really committed in the long term to seeing that its side of legal accountability bargain is also carried out.
Like many ordinary citizens, the FMF sees politicians and the Vice President being charged and yet they remain in their positions. They have not resigned or been asked to resign. Prime Minister, Qarase justified this by arguing that these persons are not guilty until proven in Court. This rankles as double standards because ordinary soldiers who have been charged were held in custody until their Court martial process was completed. They are languishing in jail whilst the perpetrators of the coup are either let off by the Courts with suspended light sentences and, many are still living normally without charges being laid.
The FMF believes that the statements of Senator Adi Litia Cakobau does truly reflect the real desire of the government to sweep everything under the carpet, so to speak once Commander Bainimarama’s appointment is terminated. The government wants to replace Bainimarama with someone who will be more pliable to the view that soldier’s sentences should be reduced so that government can then take that as an excuse for its proposed parole board under Attorney General Bale, to let off any convicted supporters after the inevitable trials. The FMF also shares a belief, abroad in the community, that some Magistrates and judges share the lackadaisical attitude of the SDL government. The SDL and CAMV parties mainly look at the resolution of the problems of 2000 from a political standpoint. Delays in the investigations and Court hearing are unhelpful to their interest in reconciliation.
Government wants reconciliation between Fijians as first priority because racial unity is needed to win the next general elections. A blanket pardon for all who committed crimes during 2000 would close the chapter to Fiji’s history and move the nation forward more quickly towards reconciliation between Fijians and Indo-Fijians. In other words, forgiveness and national reconciliation means forgiving those who committed or supported criminal acts by releasing them from jails, halting investigations, letting them off with light sentences or pardoning them. This concept of forgiveness, as Adi Litia Cakobau has said, does not see personal responsibility and legal accountability for nationalists for their criminal conduct as having a place in the process of reconciliation. Genuine forgiveness (to the Fijian nationalist mind, after all they believe they had not done anything wrong. the overthrow of the government in 1999 was completely justified) can only be complete forgiveness from the Indo-Fijian side and letting bygones be bygones.
The FMF view, as expressed by its spokesman Neumi Leweni, is that the avoidance of legal responsibility and punishment will only result in more military coups in the future. It will strengthen the belief that you can get away with treason if you do it for indigenous nationalist sentiments. You can expect to get off with a light sentence or pardon especially if you are, or an Adi or Ratu that supports the coup. You will be free to become a Member of Parliament through an election or appointment to the Senate to represent Fiji overseas. You can still be member of the Council of Chiefs, etc. a Fijian nationalist is always correct and justified whatever the circumstances.
Bainimarama has two internal weak points in his stance. First, the Nationalists who had called for and strongly supported the deposing of former President Ratu Sir Kamisese in May 2000, are now through Savenca Tikoinasau demanding an investigation into the circumstance of the sacking, and the abrogation of the Constitution (Fiji Sun 23/12/03). Their second demand is the investigation and laying of charges against those soldiers who were alleged to have killed members of the CRW in the mutiny in 2000. Bainimarama had once explored with Prime Minister Qarase the issue of validating the Military Immunity Decree but to apply to those who had killed in defence against the mutiny. This is problematic because the Appeal Court last year had ruled that the Immunity Decree was invalid. It will also be difficult for the Government to have it introduced in Parliament when current investigations and court trials are still in process.
With regard to the removal of Ratu Sir Kamisese, the Doctrine of Necess ity as spelled out in the Chandrika Prasad statement of the law and the resulting invalidation of the abrogation had excused Bainimarama from that unlawful act. He has nothing to fear there. In any case, Bainimarama was compelled to abrogate the Constitution and to be present on the ship when Ratu Mara was asked to step down, by his senior former Commanders of the FMF, who had their own agenda. Bainimarama probably wants his contract renewed first before the legal process of investigation of the defense side of the mutiny is undertaken. This has to be done if he is to be consistent in his stand for the rule of law.
This brings us back to Bainimarama’s stand off with his nemesis, Jeremaia Waqanisau, in the Ministry of Home Affairs. The latter has just been reappointed for five years as the new Chief Executive of the Ministry. This has strengthened his position. He does not want Bainimarama to continue as Commander because he sees him as too political and a threat to the Government. The issue also is very personal. Waganisau’s controversial political roles in the President’s Office in 2000 and in the Ministry of Home Affairs thereafter, was probably not considered by the CEO appointments committee, as an issue of his professionalism and suitability for the position. Waganisau is a political civil servant, as evident in his willingness to engage in public slanging with a politician such as Poseci Bune. He talks about the threats the FMF is making against an elected government as evidence of Bainimarama’s unsuitability for the position of Commander in the next five years.
In fact Bainimarama has always been careful not to respond publicly to individual politicians. He has been at pains to emphasize that he does not have a problem with the elected government, but rather with Waganisau and his officials in the Ministry of Home Affairs. They, he believes were firing up the public dispute. They appear to be the ones actively campaigning within the bureaucracy for his removal. He believes their ‘security advice’ to the President is slanted towards accommodating the demands of George Speight supporters within the government and beyond. The acceptance of such advice the FMF believes will be the cause of more insecurity, uncertainly and instability in the future.
As the meat in the sandwich, Minister of Home Affairs, Joketani Cokanasiga has publicly stated that he feels uncomfortable about the pressure from his official advisers to accept their view of who to recommend to the President. In an interesting short letter to the press, Waganisau wrote: “In reference to my advice to my Minister, I can only say that I will advise my Minister of what is correct and nothing less, because what is correct is what would be best for the RFMF, the Government and the nation”. Waganisau obviously has a view of the national interest on this issue, which he wi llnot publicly explain. The FMF has explained consistently and publicly its view of what of is in the national interest.
The analysis of this article leads to the conclusion that Waganisau’s view of the national interest coincides with political interest of the SDL/CAMV Coalition government in remaining intact in the nest three years. In response, to Mr. Waganisau’s letter, army Spokesman, Neumi Leweni asked in another letter to the editor what Waganisau meant by “what is correct”. A question pregnant with interesting and clashing answers. Waqanisau has not forgotten that he said in June 2003, that Bainimarama is entitled under the FMF Act for two five year terms. There is a precedent that President Ratu Josefa Iloilo could take into account when the nomination for Commander comes to him, from the Minister of Home Affairs with the endorsement of the Cabinet.
When Ratu Sir Kamisese Mara was Prime Minister, he nominated for appointment as Chief Justice an expatriate Judge.Governor General; Ratu Sir George Cakabau did not accept it. He appointed Sir Timoci Tuivaga instead. The current President could perhaps get Sir Timoci’s advice, instead of Attorney General, Qorinisai Bale. Sir Timoci liked giving advice to Governors Generals and Presidents in the past.