By Richard Herr

Contrary to some media reports, Fijian opposition leader Frank Bainimarama’s three-year suspension from parliament was not for an act of sedition. Rather, he was excluded from service to the parliament for something more prosaic—using unparliamentary language.

Given accusations that what Bainimarama said amounted to treason or sedition, both of which are crimes in Fiji, it might be asked why Bainimarama wasn’t prosecuted through the criminal justice system as coup leader George Speight was in 2000. The answer rests with the nature of the offence for which Bainimarama was censured as well as the parliament’s power to impose the heavy sanction that was ultimately levied against him.

Parliament had to take charge of the response to what the former prime minister said because his comments were made on the floor of the chamber following President Ratu Wiliame Katonivere’s address on the opening of its new session.

The best-known example of parliamentary privilege is the protection MPs enjoy from prosecution in the courts for what they say in parliament. That protection has been guaranteed since Article 9 of the 1689 British Bill of Rights conferred absolute immunity against civil and criminal liability for any speech made in parliament. This ancient principle is written into Fiji’s constitution and recognised by law.

Thus, although Bainimarama attacked Katonivere personally for supporting the new government led by Sitiveni Rabuka and issued an undisguised dog whistle calling on the military to act, no court could hear his words as evidence of a crime because he was protected by parliamentary privilege.

Privilege’s shielding of MPs from criminal prosecution imposes an obligation on parliament to provide internally for discipline and accountability. This is the role of the privileges committee.

Speaker Ratu Naiqama Lalabalavu deemed Bainimarama’s comments to be ‘prohibited references’ under Standing Order 62 and directed the committee to consider whether they constituted a contempt of the parliament’s rules.

Allies in parliament tried to argue the defence of protected free speech and said government members were interpreting Bainimarama’s words and the standing orders to suit their political agenda. Bainimarama’s experience undercuts any such defence.

After eight years in parliament, Bainimarama was well aware that the president’s address was written by the government to outline its agenda for the coming session. He was entitled to attack the policies presented by the president but not to attack Katonivere personally for doing his duty as president.

Equally, having been prime minister when the standing orders were brought in, Bainimarama would have been aware of Standing Order 62’s proscription against ‘treasonable’ and ‘seditious’ words. His call to the military to defend the constitution against the government was highly inflammatory in light of the assertion by the commander of the Republic of Fiji Military Forces, Major General Ro Jone Kalouniwai, the previous month that the RFMF had such power.

Perhaps unsurprisingly, given that three of its five members were from the coalition government, the committee supported the speaker’s ruling and recommended a three-year suspension.

Before the final vote in the plenum, Rabuka suggested that a lighter penalty would be in order if Bainimarama apologised. The opposition leader refused and so the committee’s recommendations were carried by a margin of 27 to 24, with four not voting.

The supremacy of parliament and its privileges mean that Bainimarama can’t appeal to a court to overturn the decision. Generally, the courts cannot review the actions of the parliament unless they violate the higher law of the constitution.

But that may open the door to Bainimarama questioning the severity of the suspension. The constitution’s bill of rights includes a provision against ‘disproportionately severe treatment or punishment’.

The nature of the offence for which Bainimarama was censured could be regarded as justifying as severe a punishment as the parliament could provide. It may have been deemed a criminal offence if he’d made his comments outside the protection of the legislative chamber.

However, according to Richard Naidu, the lawyer notoriously prosecuted by the Bainimarama government for a humorous social media post, the three-year suspension may not be as severe as it appears.

Naidu has argued that the suspension’s impact may be less for Bainimarama than has been the case with previous suspensions of MPs. As opposition leader, Bainimarama occupies a position established under the constitution and has other constitutional roles outside parliament, so he may be entitled to retain his salary and other rights.

The leader of the Social Democratic Liberal Party (SODELPA) and deputy prime minister, Viliame Gavoka, has attempted to deflect a public perception that the parliamentary measures against Bainimarama could be seen as revenge or payback for the three suspensions his government imposed on the previous opposition.

Gavoka insisted that the personal attacks on the president and references to the constitutional powers of the military to exercise a political role were serious affronts to the dignity of the parliament, as the privileges committee found them to be.

Certainly, the complaints against Bainimarama were more firmly grounded than the privileges findings against the current speaker, Ratu Naiqama, who was convicted in 2015 for a foul cultural slur about the then speaker, Jiko Luveni, outside parliament at a SODELPA constituency meeting. A civil action rather than parliamentary censure was readily available in that case.

It was said at the time that some wanted a three-year suspension for Naiqama but the government was persuaded to opt for the two-year suspension eventually imposed. Regardless of the merits of these two high-profile suspensions, they raise the democratic issue of parliament being entitled to impose such heavy sanctions while judging its own case.

Westminster parliaments generally have long eschewed such severe putative penalties largely because of the issues of fairness and the perceived lack of impartiality.

It might be wondered, if something as genuinely serious, and illegal, as treason or sedition is alleged to be involved, why doesn’t the parliament waive privilege to allow the courts to deal with the case?

There are very few examples of any waiver of privilege anywhere in the Westminster world, and these are individual cases, often voluntary, and limited to minor events. In something as significant as the parliament’s complaints against Bainimarama, the possible consequences and effects of the precedent make a waiver unimaginable.

However, a waiver from parliament may not be needed. It has been reported that the police are now compiling a case file for the Office of the Director of Public Prosecutions based on a media release from Bainimarama. Even if the media release contains a word-for-word repeat of his words in parliament, it will not be protected by privilege. In such a case, privilege would protect everyone except Bainimarama.