Military must not be used by Bainimarama to sell out Fijian interests, weaken the GCC and the Church and to cover up Bainimarama's
By RAJENDRA CHAUDHRY
General George S Patton Jr once said: “It is a proud privilege to be a soldier – a good soldier … [with] discipline, self-respect, pride in his unit and his country, a high sense of duty and obligation to comrades and to his superiors, and a self confidence born of demonstrated ability.”
The Fiji military force is established under the RFMF Act. It is thus a creature of statute. Its function is stated under section 3 of the RFMF Act as:
3. (1) There shall be established in Fiji forces to be known as the Royal Fiji Military Forces (hereinafter called the Forces).
(2) The Forces shall be charged with the defence of Fiji, with the maintenance of order and with such other duties as may from time to time be defined by the Minister.
It has a command structure where the President is Commander in Chief and the ministerial direction comes from the Minister of Home Affairs, although Frank Bainimarama openly flouted this reporting requirement post 2001.
The RFMF has been a Fijian (indigenous Fijian) institution from the outset, although certain non Fijian persons have held commissions and senior posts (Major V V Singh and Mohammed Aziz).
The RFMF has produced fine soldiers such as Talaiasi Labalaba, Safanaia Sukanaivalu and Ratu Sir Lala Sukuna. Its commanders included persons of high stature such as Ratu Edward Cakobau and Ratu Epeli Ganilau.
The first and perhaps indelible blemish on the RFMF was the extra constitutional act on 14 May 1987. The second was on 19 May 2000 and the third was on 5 December 2006. In all these acts of treason, the military command was directly involved. In State v Seniloli  FJHC 48; HAC0028.2003S (5 August 2004), Shameem J said this of treason:
“What is treason? Treason is any act or acts done, for some public or general cause, to overthrow or remove the established Government, unlawfully and by force. Treason includes any act of forcible resistance to the authority of the government of the day in some public way. A takeover of Parliament, and the taking of the Government as hostages, in order to prevent the Government from lawfully exercising its powers, or of the Head of State from doing so, is treason. The forming of an illegal or rebel government to replace the lawful government is treason if accompanied by an intent to so replace the lawful government by illegal means.”
The 1987 and 2000 coups were carried out with military direction and support under the belief and justification that Fijian interests were under threat under an FLP led government. It was also supported to a large extent by the business community which has long opposed the idea of greater accountability in the conduct of its business as it relates to revenue and taxation and labour laws.
The 2006 coup and the hoodwinking of the military by Bainimarama
The 2006 coup however defied the ‘threat to Fijian interests’ tag. It was carried out by Bainimarama under the pretext of a clean up campaign to eradicate corruption and racism. The real motive for the act of treason by Bainimarama was to avoid being charged for the murders of the CRW soldiers in November 2000.
Bainimarama, used the military machinery to put into effect his extra constitutional act – which was subsequently confirmed as unlawful by the Court of Appeal on or around 9 April 2009.
The High Court (Coram Gates, Byrne and Pathik) held that Bainimarama’s takeover was lawful on the doctrine of necessity. It appears that the members of the Court were obviously blind to the profound words of Gates J in Prasad v Republic of Fiji & Attorney-General (No 4)  FJHC 269, where he said:
”It is obvious that an usurpation of the power of Parliament, that is the Parliament consisting of the President, the Senate and the House of Representatives by subverting or abrogating the Constitution does not amount to an amendment within the supreme law. A challenge made in this way is an unlawful act.”
In a damning judgment, which overturned the High Court decision of legitimizing the coup on grounds of necessity, the FCA made the following declarations and orders:
 The court hereby:
'(1) Declares that:
(a) the assumption of executive authority and the declaration of a state of emergency by the first respondent;
(b) the dismissal of the first appellant from the office of Prime Minister and the appointment of Dr Jona Baravilala Senilagakali as caretaker Prime Minister;
(c) the advice that Parliament be dissolved by Dr Senilagakali;
(d) the order by the first respondent that the Parliament be dissolved;
(e) the appointment on 5 January 2007 of the first respondent as interim Prime Minister and of other persons as his ministers by President Uluivuda;
(f) the purported Ratification and Validation of the Declaration and Decrees of the Fiji Military Government Decree of 16 January 2007, subsequently renamed as a promulgation of the Interim Government of the Republic of Fiji, by which decree President Uluivuda purported to validate and confirm the dismissal of the first appellant as Prime Minister of Fiji, the appointment of Dr Senilagakali as caretaker Prime Minister and the dissolution of Parliament; were unlawful acts under the Fiji Constitution.
(2) Declares that in the events that have occurred it would be lawful for the President acting pursuant to s109(2) of the Fiji Constitution, or as a matter of necessity, to appoint a caretaker Prime Minister to advise a dissolution of the Parliament and the issuance of writs for the election of members of the House of Representatives.'
President Josefa Iloilo then abrogated the 1997 Constitution on 10th April 2009 and imposed emergency rule till January 2012. The emergency rule was facilitated by the use of military officers to quell any opposition to the illegal administration of Bainimarama. It was characterized by an open contempt for the rule of law.
Human rights abuses, by the military and police under Bainimarama’s orders, were rife and the role of courts became subservient and pliant to the dictates of an illegal regime.
The courts, headed by the once esteemed and respected Anthony Gates, was controlled, manipulated and directed by the illegal attorney general Aiyaz Khaiyum and former High Court judge and one of the principal beneficiaries of the abrogation of the constitution, Nazhat Shameem. Gates, seems only to appear at the obligatory court ceremonies and the occasional cocktail and is said to be contemplating retirement in August 2014.
The use of the military to mount an assault on indigenous rights
Post abrogation of the 1997 Constitution, Bainimarama has, using military muscle to bully the chiefs and church leaders. This has been by way of intimidation and/or the laying of trumped up charges.
The GCC, which under section (3) (1), nominated 5 members of the Board, has had this statutory right removed. Instead, the GCC quota is now nominated by the Government. This has serious implications for native landowners given that their trustees (the GCC) have been removed from nominating persons who would represent their interests on the Board.
Further, the list of 3 more names of Board members as drawn up from nominations by the respective provincial councils has also been removed with the outlawing of provincial councils. The duty of the FAB is stated in the Fijian Affairs Act (s 4(4)) and reads:
(4) It shall be the duty of the Board, in addition to any powers or duties especially conferred upon it, to submit to the Minister such recommendations and proposals as it may deem to be for the benefit of the Fijian people, to consider such questions relating to the good government and well being of the Fijian people as the Minister may from time to time submit to the Board and to refer such questions to the Council or to take decisions or submit recommendations thereon.
Clearly, the FAB had a duty under the Fijian Affairs Act to act in the interest of the Fijian people as it related to good governance and benefit of the Fijian people.
With the changes to the NLTA, by the illegal regime, means that of the maximum of 12 Board members, the illegal regime controls 10, and which includes the President and the Prime Minister. The architect of such changes is Aiyaz Sayed Khaiyum and is advised by Sharvada Sharma, the Solicitor General.
The unilateral changes to the NLTA effectively means that the trustees of native land, that is the GCC, does not have any say in how native land matters are addressed. This is simply preposterous and an affront to every indigenous Fijian, who no longer has any say on how his/ her land is to be used. In effect, by the changes to section 3 (1), the illegal regime has effectively usurped all rights and interests in native land from the landowners onto themselves. This change was a corollary to the establishment of the Land Bank.
The arbitrary changes to the Native Land Trust Act (re lease money distribution, and changes to the appointment of the Board from the President to the Prime Minister) is clearly a direct assault on the rights the Fijian people to determine how they want their land to be utilized. It is trite that to an indigenous race, the land is the most important asset and which forms a connection with their culture, tradition and matters alike.
What it means in simple terms is that the indigenous Fijian no longer has a say in how native land will be used. The illegal regime, by controlling and manipulating all appointments to the NLTB will effectively control all transactions relating to native land. All other interested parties will simply be left out. This is an alarming prospect and which exposes the indigenous peoples to great insecurity as an illegal regime has effectively taken away their right to determine the usage of native land. It is time to wake up and act against this threat.
The outlawing of the GCC, ironically by Nailatikau, himself a chief, on 14 March 2012, is a further assault on indigenous rights. The GCC was accorded statutory recognition pursuant to section 3 of the Fijian Affairs Act, which reads:
Great Council of Chiefs
3.-(1) There shall be in respect of the Fijian people a council called the Great Council of Chiefs which shall consist of such number of appointed, elected and nominated persons as the Governor-General may by regulation prescribe.
(2) It shall be the duty of the Council, in addition to any powers or duties especially conferred upon it, to submit to the Governor-General such recommendations and proposals as it may deem to be for the benefit of the Fijian people, and to consider such questions relating to the good government and well being of the Fijian people as the Governor-General or the Board may from time to time submit to the Council, and to take decisions or make recommendations thereon.
The role of the GCC has been codified as stated above and in all of Fiji’s three previous constitutions, as publicly mandated, it has played an important role in ensuring the indigenous rights are adequately addressed by nominating members to the Senate [s64 (1) (a) in the 1997 Constitution] and also having an important role in the appointment of the President [s90 of the 1997 Constitution]. The GCC’s role, however, extends beyond the statutory functions prescribed in various legislations. It is also an important body in the daily affairs and unity of the indigenous peoples.
Rupeni Nayacakalou in his book, Leadership in Fiji (1975), said this of the GCC:
Councils of chiefs had long been important in Fijian political life, and the chiefs who assembled to discuss ceding their islands to the British Crown formed, perhaps, the greatest of such assemblies. Although in pre-colonial times there had been no enduring council of representatives from all chiefdoms, the GCC can be said to have roots in Fijian tradition – as well as in the ideas of British colonial officials. It is the classic ‘neo-traditional’ institution, established through a blending of traditional forms of rank and political procedure with colonial law and its administrative and consultative requirements.
History has shown us that the GCC has always been a consultative body. It has been consulted and has been responsible for many very important decisions affecting Fiji. The GCC, unlike the individual chiefs, is an institution. This organisation was specifically set up to protect the interests of the Fijian people. Its role is perhaps best summed up by one of Fiji’s greatest sons, Ratu Sukuna, who said:
"We are the High Chiefs of these islands. We are the leaders of the people. On us is the duty of pointing out to them the right course. Bear this in mind. We have to lead on two points- hold back those who advocate radical changes (for which we are not sufficiently educated) and enliven the laggards before their ignorance destroys us."
Bainimarama’s attack thus on native land and the GCC, through the use of direct or threatened force or other methods of coercion, involving the military is totally unacceptable and un Fijian. It is actually an act of treachery.
The military, whose duty it is to defend Fiji, as enshrined in the RFMF Act, is actually being used by Bainimarama to destroy Fiji in every manner shape or form to fulfill his agenda of being an absolute ruler or more appropriately a tin pot tyrant.
• It (RFMF) is being used to give effect to a regime which was declared as unlawful by a court of law. That decision was not stayed (on account of Khaiyum’s misguided decision to abrogate the 1997 Constitution) and as such is good law.
• It is being used to ensure that that the illegal and anti Fijian changes to the NLTA is effected and which will create instability and socio economic malaise for the Fijian and general population.
• It is being used to decimate the chiefly system that has been the guide of the Fijian people for over 140 years.
• It is used to remove provincial councils and other instruments of Fijian administration.
• It is being used to emasculate the Church, which has stood as a beacon of hope and faith for the Fijian and other peoples since Fiji embraced Christianity after Fiji was ceded to Britain circa 1874.
• It is used to carry out the corrupt and thieving agenda of a treasonous regime which has refused to publicise the Auditor General’s reports from 2006.
• It is used to shield the illegal regime from declaring its annual salaries, allowances and other benefits an.
• It has been used by the illegal regime to ensure that any objection to matters of good governance is thwarted by actual or threats of force and allowing family members of Bainimarama and Khaiyum to occupy positions in the civil service and statutory organizations.
• It has been used by the illegal regime as a buffer, from the people who seek to have a say in how they will be governed, by trashing the Ghai constitution and replacing it with the BaiYum con-stitution.
• Used by the illegal regime to campaign for Bainimarama when he is prohibited by law to be doing such a thing.
• Used by the illegal regime to settle hundreds of Chinese of valuable State and native land, without following proper immigration and land use laws.
• Used by the illegal regime to strip workers rights (ENI), political rights (PPRD), reduce pensions (FNPF), purchase aircrafts without due diligence (Air Pacific), facilitate mining without the consent of the landowners or an EIA (Namosi/ Bua) and offering for sale, to businesses, crown land in Lautoka belonging to the Lautoka City Council and as used by the rate payers of Lautoka.
It is about time the military woke up to the charade that Bainimarama is playing and the fact that they are being used in the oppression of the Fijian people and also those of other races. I ask the RFMF officers to heed the words in Ecclesiastes 5:8 , which reads:
“If thou seest the oppression of the poor, and violent perverting of judgment and justice in a province, marvel not at the matter: for [he that is] higher than the highest regardeth; and [there be] higher than they.”
What needs to be done
The RFMF must not condone oppression. It must stand up to it. If Bainimarama issues orders that break the law and stifle the will of the people, then the RFMF has a duty to disobey such an order. This was established in the Nuremburg trials and also in Fiji in State v Nayacalagilagi  FJHC 73, where Goundar J said:
"While I consider your motive to arrest the deceased and the complainants were to maintain law and order in the country, I cannot ignore that you breached
your legal duty to protect them from any harm whatsoever whilst they were in your custody. Instead of being the custodian of law, you took the law into your own hands and became both the jury of guilt and executor of punishment. Every detainee in this country is entitled to the constitutional guarantees such due process of law and protection from degrading and inhumane treatment. By your conduct you denied the deceased and the complainants the due process of law that you enjoyed in this trial."
The Pita Driti trial has further demonstrated that Bainimarama will sacrifice anybody to secure his position as the head of an illegal regime. He has and will continue to use the military to further his agenda. Military officers who support him in the discharge of their orders, which sees them committing acts of unlawfulness must realize that they will be held to account under a democratically elected and duly constituted Parliament. The RFMF must thus immediately remove itself from lending any support in any manner shape of form where they are in breach of the laws of Fiji. They must remember that the Driti case has effectively rendered the immunity provisions in the BaiYum con-stitution to be without effect.
Most importantly for the RFMF, it is an institution of Fijian solidarity, culture and tradition. It has been an institution of importance and its officers have done Fiji proud in the service of their country in duty and in sports over the years. It is also an institution steeped in religious tradition.
The officers, generally are deeply religious and persons of good values. All these values are connected intrinsically to the chiefly system and the Church – the very things Bainimarama has sought to destroy since 2006. His comments on the military continuing what it started in 2000 are a red herring. It is to deflect attention and to have him submit to the rule of law.
Since 2000, there have been 2 elections, the military officers have voted in each of these elections and no issues were raised about anything on matters of corruption. The court system was operational, the media was free to report on matters as it saw fit and Parliament was listening to the people.
As with any Parliament there were opposing views, grandstanding and political banter but at the end of the day the majority decision under a multi party system (in 2006) showed that political difficulties could be overcome through tough negotiations and goodwill.
It is time the RFMF woke up to reality and did what needs to be done and that is to get Bainimarama to submit to the rule of law.
They must work within the confines of the RFMF Act and in the defence of Fiji from Bainimarama’s onslaught on national interests. Anything less is simply unacceptable. Not doing anything now will invite the curse from their future generations of having sold off their identity, land, tradition and freedom for money.
It will be a befitting indictment if the RFMF continue to be fiddling their thumbs while Fiji drowns in the throes of lawlessness, recession and extreme poverty. The time to act is now.