Gregor Allan: Fiji coup case is looking bad for the prosecution

More than five years has passed since George Speight and his armed thugs stormed Fiji's parliamentary debating chamber to kidnap the democratically elected Prime Minister, Mahendra Chaudhry, and dozens of his government MPs. The event triggered a fit of wanton destruction in which central Suva was systematically looted and ransacked.

Indo-Fijian communities were menaced with arson, violence and rape. Resorts were invaded. Prisoners rioted and escaped.

For those nationalists forming a protective shield around Speight and his entourage, day 10 of the coup was earmarked a festival of praise. Lovo pits heaved with produce ferried in from plundered Indian farms and shops. A miscellany of pastors lauded Speight for his efforts, exhorting the expulsion of Indo-Fijians and the formation of a Christian state. That day, a policeman was shot dead.

The coup failed by reason of an almost comedic, strategic miscalculation: the military did not support it. Attempts to negotiate a way out of this blunder through bribery failed. So mutiny became the modus operandi. In July 2000, mutinous soldiers secured control of the Sukanaivalu Barracks in Labasa. In November, the Queen Elizabeth Barracks in Suva were attacked by mutineers with a brief to remove the commander. Eight soldiers were left dead.

Thus, the scene was set for some of the most significant prosecutions in the history of the Pacific - prosecutions reasserting the rule of law as the lynchpin of civil society.

Fiji has made great progress down this path. Speight and several of his co-plotters now reside at the prison island of Nukulau. The mutineers have been (and are still being) court-martialled.

Last year the country's Vice-President was imprisoned for taking a presidential oath in Speight's Taukei civilian government. So was the Deputy Speaker - a member of the CAMV party, the junior government coalition partner - for assuming the offices of Attorney-General and Minister for Justice. So, too, was a senator, also the Vice-President of the ruling SDL Party, for plotting the bloody November mutiny.

Last December, the Minister for Information was charged with taking an oath in Speight's rebel cabinet. In April, the Minister for Lands and a CAMV senator were convicted for unlawfully assembling at the Labasa barracks.

But the wheels on the prosecution cart are now starting to come off. Indeed, if the Government has its way, it will be as though there never was a cart.

Under a draft bill, deceptively termed the Promotion of Tolerance, Reconciliation and Unity Bill, the political violence of 2000 will be "erased from legal memory". No more prosecutions. Convictions entered to date expunged. No civil redress.

This staggering result, the preamble reveals, is justified by apparent concern among "various" ethnic communities about "various" aspects of their rights as Fiji citizens.

Really? Most public complaint has stemmed from the prosecution's pedestrian progress.

Opposition to the prosecutions themselves has been led, perhaps unsurprisingly, by the Government itself, starting with empathetic epithets over the imprisonment of the (now former) Vice-President - followed shortly thereafter by his release "on medical grounds".

This year, the Commissioner of Prisons released another chiefly oath-taker on "extramural punishment". The Minister for Lands and his senatorial co-convict were released after serving only 11 days of eight-month sentences.

The unity bill, though, will gazump all this. It promises complete and retrospective amnesty (with priority, of course, going to "persons in custody") to all who acted with a "political objective". This objective is expansively non-defined as "political purpose".

A special Reconciliation and Unity Commission is to apply this elastic concept in accordance with "principles of restorative justice" - a term that is, itself, creatively defined as entailing a shift of the "primary focus" of crime "from being an offence against the state" to being one against individuals.

Through this jurisprudential delusion, of course, the crime of treason simply ceases to exist.

And the commission itself? Commissioners will be appointed by the President on the advice of the Prime Minister after the Prime Minister has consulted the leader of the Opposition.

"Consult" is the most litigated word in Fiji's history. Under its Constitution, the Prime Minister must "consult" the opposition leader in allocating Cabinet posts.

The practical requirements of "consultation" in that analogous context have been litigated all the way to the Supreme Court, twice, still without satisfactory resolution.

More alarming is a provision enabling the removal of commissioners for incompetence - a power exercisable following consultation with only Cabinet. Of course, the Opposition won't submit to "consultation" of any type: it has already urged the Human Rights Commission to investigate the bill's constitutionality. Thus, the commission stands to be stacked with Government appointees.

Yes, there is provision to compensate coup victims. Provided, that is, they can establish a "gross violation of human rights", and provided they don't giddily aspire to reparation beyond the compensation scales set under the Workmen's Compensation Act.

But given that the bill purports to "shift the focus" from the state to victims, it is remarkable that the most immediate victims of the coup, who, indeed, now form the Opposition, were not consulted in its drafting. In fact, the Opposition, along with other key entities, such as the Great Council of Chiefs, was not even informed of its preparation.

What recuperative legacy will be left by an amnesty commission born of the clandestine workings of a government that is feeling the pointy end of the prosecutorial stick?

The Opposition's criticisms are widely held. The Law Society has reminded the Prime Minister that "you cannot have one law for the rich and one law for the poor". Other non-government organisations are of like mind, one even declaring its intention to challenge the bill on constitutional grounds.

Needless to say, the military, whose commander is said to already have somewhat flexible views on the Army's beholdenness to Government, is singularly unimpressed.

But the bill will likely pass. Only 15 months out from elections, the Government knows that its coalition with CAMV - a party formed with a mandate to free Speight - must stay intact.

Priority number one is to stay in power. The rule of law comes a distant second.

* Gregor Allan, a former Assistant Director of Public Prosecutions for Fiji, is a senior lecturer in Wollongong University's centre for transnational crime prevention.