In seeking fresh engagement with Fiji, the aim of Australia, New Zealand and the rest of the Pacific Islands Forum is to push for the best achievable political bargain between Fiji's people and the Bainimarama New Order regime. 

That means outsiders will have to eat a bit of crow, as the previous column described, while understanding that the New Order will deliver less democracy than it promises. This is the sad understanding that Canberra, Wellington and the rest of the Forum have brought to Fiji policy from the time of the 2006 coup. Dealing with Bainimarama was always going to be long journey, taken with low expectations. 

The tough love approach to Fiji is being discarded as a failure, but there is still a lot not to like about where Fiji is heading.

Applying the Suharto New Order model to what Bainimarama is slowly creating provides a checklist for what the regime is doing. Unfortunately, the Supremo seems to be following the script closely. The New Order requires all opposing authority centres to be neutered (courts, public service, churches and traditional authority centres such as the Great Council of Chiefs). Bainimarama has ticked all those boxes. 

Other significant political figures have to be subsumed or forced to submit. Fiji's two previous prime ministers – Laisenia Qarase and Mahendra Chaudhry — are getting the full treatment. This month, Laisenia Qarase was jailed over financial transactions that took place two decades ago. Chaudhry is also being prosecuted for alleged financial misdeeds. The two political leaders whose parties got 84% the national vote at the most recent elections will probably be ineligible to stand at the 2014 poll.

The foreign judges brought in by the regime are applying the law to these high profile cases without fear or favour. Beyond the courts, the fear or favour line has a different flavour. Anyone who does not have the favour of the Supremo has a lot to fear. The Attorney General is demonstrating that the law can be far more useful in dealing with opposition than the old method of taking troublemakers up to the barracks above Suva for an unfriendly chat.

The Kenyan lawyer holding the inquiry on Fiji's new constitution, Yash Ghai, is starting to bump up against New Order boundaries. The distinguished lawyer has voiced his worries about the power wielded by the security services, the impact of censorship and proper access to the courts. The return slapdown from the Supremo had a certain ho-hum quality about it. But there was some unintentional humour in Bainimarama's line that the man charged with designing a new constitution should stay out of politics.

Whatever Ghai recommends, the assembly that considers his report will be selected by Bainimarama.

The understanding dawning on Ghai is that he is grappling with the culture of immunity which is central to the conduct of a New Order regime. The professor told Radio Australia that he's particularly concerned about the legal immunities the military wants to give itself in the new constitution:

I guess our concerns are that first of all immunity of course promote the culture of coups that Fiji is trying to move away from. We do realise of course that there had been immunity in the past in Fiji and in many other countries that the regime didn't give up power unless it had some guarantees of the kind. We think the immunity are a bit overdrawn and we also had hoped that immunity will emerge as an issue in the process, so it could be part of a wider package, including the new constitution. Our understanding of the international law and national laws working community suggest these days that if immunity is imposed as it would be in this case, courts in future years are likely to disregard that. But where immunity is part of a negotiated process they are properly respected and we are also concerned about that.

The point of immunities for the military is to evolve or upgrade Fiji's coup culture, giving the military a formal dual function, with a central political role to match the defence function. This is the evolutionary path of a new order regime, as the military seeks to entrench unique prerogatives within a democratic system. Or perhaps, given the fear-or-favour flavour, describe this as the military entrenching itself behind a democratic facade.

Photo by Flickr user JSA_NZ.