FIJI MILITARY
THE UNRESOLVED ISSUES AT STAKE OVER THE COMMANDER CONTROVERSY

What seems a straight forward simple issue in terms of the law over the future of the commander of the Fiji Military Forces appears to be complicated. This is because there are other very sensitive unresolved issues tied around this dispute that keep cropping up over time as some key players have their say.

By JONE DAKUVULA in Suva

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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 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.

Filipo Tarakinikini
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.

Weaknesses
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 Necessity 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 he 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 will not 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.

Jone Dakuvula is the Program Director for Citizens
Constitutional Forum