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Last Updated: 16 August 2010
Republic of Fiji v Prasad: A military government on trial
Dr Noel Cox, Auckland University of Technology
Since 1987 Fiji has exhibited signs of a serious decline in political
stability. Though by no means irreversible, this instability
threatens both the
international standing of the country and its economy. The latest chapter, a
court challenge to the legitimacy
of the present government, offers an
opportunity for a return to normalcy, but also presents potentially grave
dangers.[1] It also
illustrates the difficulties inherent when the armed forces of a country become
involved in the political process.
In a situation where there has been a
purported overthrow of a Constitution but where the Court system has survived
virtually unscathed, the Court has two options, as the cases show. First, it can
say that
the usurping government, by abrogating the Constitution or by changing
it in an illegitimate manner, has succeeded in changing permanently the previous
legal order and that the new order
is legally valid. There is always the danger
that such a finding is seen as giving the stamp of legitimacy to a usurper. As
against
that perception, a Court cannot be blind to reality, however unfair or
unfortunate that reality may be. The other option for the
Court is to declare
the usurpation invalid. It was this latter option which the Court chose.
The circumstances of the country
Politically, the current unrest may be blamed largely on the racial mix that
characterises the population. Fijians of Indian descent
are amongst the leaders
of the national economy. But the indigenous Fijians of mixed Melanesian and
Polynesian ancestry, a bare minority
of the population, own the land and have
felt that they should have political control as well.
Until 1987 they did
exercise broad political control, under the 1970 Constitution which enshrined
certain rights of indigenous
Fijians.[2] Until 1987
the Government was dominated by native Fijians, but in that year a new
Government, headed by Dr Timoci Bavadra, entered
office. This was subsequently
overthrown by Lt-Col Sitiveni Rabuka, principally because the advent of the new
Government augured
greater political rights for Fijians of Indian origin.
The
constitutional development of Fiji since 1987 has seen on-going attempts to
reconcile the expectations of the Indians and the
rights of the indigenous
Fijians. The first constitution after the 1987 coups provided for greater
protection and enhancement of
indigenous Fijian voting rights and land tenure
and other interests, beyond the protection that had been afforded in the 1970
constitution.
This was criticised for entrenching native rights, including the
requirement that the Prime Minister be of native Fijian ancestry.
In
September and October the House of Representatives respectively resolved
unanimously that the President should appoint a commission
to review the
constitution of 1990. In 1995 a commission, chaired by Sir Paul Reeves, was
appointed to frame a new
constitution.[3] The
1997 Constitution, which came into effect a year
later,[4] went some way
towards meeting the expectations of much local and international opinion that
the ethnically discriminatory provisions
of the 1990 constitution should be
reduced.[5]
Particularly, the new House of Representatives would not have a built-in
majority of indigenous Fijians, nor would the Prime Minister
necessarily be an
indigenous Fijian. The President is, however, appointed by the Great Council of
Chiefs, which represents native
Fijian
interests.[6]
The
current (1997) Constitution provides for the preservation, development and
co-existence of ethnic communities and the equitable sharing of power amongst
all
of them. Unfortunately, this has proven unsuccessful. The title of the
report of the Reeves commission, entitled ‘The Fiji
Islands: Towards a
United Future’, has thus far proved tragically ironic.
The seizure of power by the armed forces
Neither the 1997 Constitution, nor general principles of constitutional law,
permit the armed forces to assume executive authority in such a
way.[7] Martial law is
the suspension of normal law. When this is done by the military acting at the
behest of the civil authorities, justified
by extreme circumstances, it is
regrettable but not
illegal.[8] When this is
implemented by the military, without the consent of political leaders, and
indeed against their wishes, it is nothing
less than a military coup. In no
circumstances can the military abrogate the
Constitution,[9] and it
was patently absurd for Commodore Bainamerana to say that he had ‘done so
by virtue of the powers vested in
me’.[10]
Legally, the present situation in Fiji may be seen as a series of
interconnected events. The 19 May 2000 seizure of Prime Minister
Mahendra
Chaudhry- the first Prime Minister of Indian blood- and members of the
Government and Parliament, was an attempted coup.
Although George Speight lacked
military backing, his action was designed to overthrow the lawfully appointed
Government. Although
Ratu Mara did not capitulate immediately to the demands of
the coup leader, his ability to quell the coup attempt was limited by
his fear
of harm coming to the captives, and perhaps by a lack of confidence in the
loyalty of the armed forces.
Executive authority in emergencies
There can be no doubt that the power of a head of State under even a written
constitution extends by implication to executive acts.
It also extends to
legislative acts taken temporarily (that is, until confirmed, varied or
disallowed by the lawful legislature)
to preserve the constitution, even though
the constitution itself contains no express warrant for
them.[11]
This
principle has been applied also in Grenada, where the Governor-General powers in
this respect were approved by the Grenada Court
of
Appeal.[12] This
limited necessity doctrine has also been applied in Canada, to validate a body
of legislation which had been unconstitutionally
enacted.[13] The
essence of the emergency powers is that they are implied to enable the executive
authority to act to preserve or restore the
Constitution where it is under
revolutionary attack or otherwise in
crisis.[14] This
illustrates the role of the Crown as ultimate guarantor of the constitutional
order.
A similar challenge to the authority of the lawful executive arose in
Fiji in 1987. In accordance with the wording usual in modern
Commonwealth
constitutions, s 72 (1) of the Fiji Constitution of 1970 stated that
“[t]he executive authority of Fiji is vested in Her
Majesty”.[15]
Under s 72 (2) that authority may generally “be exercised on behalf of Her
Majesty by the Governor-General”. Neither powers conferred
by the
Constitution nor the implied emergency powers however gave legal validity to the
Governor-General's action of 19 May
1987[16] in dissolving
Parliament and declaring all ministerial offices
vacant.[17]
As the
Governor-General was bound to dissolve Parliament only on the advice of the
Prime Minister,[18]
and the dissolution was without such advice, it would be invalid unless covered
by the emergency prerogative or the necessity doctrine.
Since the Fijian
Constitution itself precluded relying on the
prerogative,[19] the
second must be relied on. In the circumstances a prorogation rather than a
dissolution would have been more appropriate. It would
appear
however[20] that a
merely de facto dissolution, done in excess of his power by the
Governor-General, may still be legally effective to bring
a Parliament to an
end.[21]
The
potential weakness of the Governor-General in the face of entrenched opposition
was also illustrated in Southern Rhodesia in
1965, and in Grenada in 1978 and
1983. Southern Rhodesia in 1965 was not technically a Dominion, but nor was it a
normal colony.[22] The
Governor, Sir Humphrey Gibbs, had only limited responsibilities as the
representative of the Queen. Due to the long-running dispute
with the United
Kingdom over the policies of the Rhodesian Government, formal recognition as a
Dominion was withheld. In 1961 a British
Order in Council amended the
constitution of Rhodesia, giving the Commonwealth Secretary executive powers in
Rhodesia, but this was
ignored.
After the Unilateral Declaration of
Independence every effort was made to undermine the position of the Governor. He
was deprived
of his official guards and transport, and his telephone was
disconnected.[23] With
the help of a declaration of a state of emergency, issued by the Governor
immediately before UDI, the Rhodesian Government was
able, through its control
of the police and military, to consolidate its power base. Gibbs considered his
function to be to give
constitutional recognition to a successful opposition
rather than help create one. He rejected the legality of the UDI, but accepted
Ian Smith as Prime
Minister.[24]
In
Grenada in 1978 and 1983, the Governor-General, Sir Paul Scoon, was faced with
political crises. In 1978 the government of Sir
Eric Gairy was overthrown, but
Scoon accorded the new regime de facto recognition and they studiously ignored
him. They did not,
however, attempt to remove him from office.
In 1983,
after the collapse of the New Jewel Movement Scoon was forced to act, as the
sole legal, or de facto, governmental authority
in Grenada. In practice this
action took the form of ex post facto approval of an invasion by Caribbean and
American military forces.
On his own the Governor-General had been powerless to
greatly influence the course of the crisis, though he retained a certain legal
and moral authority.
In Fiji in 1987, after the second coup led by
Lieutenant-Colonel Sitiveni Rabuka, the Governor-General, Ratu Sir Penaia
Ganilau, resigned
after failing to persuade the army to return to barracks.
Unlike Gibbs, Ganilau quickly accepted the reality of the political situation,
and became president in the new regime later that
year.[25]
In each
of these cases, the fact that the Governor-General could be removed, and the
absence of any significant personal staff, limited
their ability to resist
pressure from the Government. But each exercised, or attempted to exercise, an
authority which owed as much
to ancient concepts of sovereignty as to modern
constitutions.[26]
One
counter-balance to this danger is that a quite special relationship
traditionally exists between the office of Governor-General
and the armed
services.[27] On
formal and informal occasions when visiting military installations, successive
Governors-General of New Zealand have been accorded
the respect and support not
always forthcoming from their
Ministers.[28] The
armed forces appeared to be eager to preserve the symbolic role of the Crown as
non-political head of the armed
forces.[29]
The
Governor-General of New Zealand is styled “Governor-General and
Commander-in-Chief in and over our realm of New Zealand”,
in the letters
patent constituting the office of Governor-General. The Defence Act 1990 also
styles the Governor-General Commander-in-Chief.
The Sovereign possesses
“the sole government command and disposition of the militia, and of all
forces by sea and
land”,[30] but
is not Commander-in-Chief. The supreme command probably cannot be fully
delegated. But a Commander-in-Chief will be given the
power to raise armed
forces for the
Crown.[31]
Whilst
always acting upon ministerial advise in respect of the armed forces, the
relatively close personal relationship fostered between
the armed forces and the
Governor-General serves as a reminder that the armed forces are above party
politics, in a similar way to
the Crown.
A similar link existed between the
Crown and the armed forces of Fiji before 1987. Since then, although nominally
preserved, the increasing
politicisation of the Republic of Fiji Armed Forces
was to put an intolerable strain upon the loyalty of those forces to the
regime.
History shows that were a coup fails to achieve its objectives-
usually by winning the support of the military, it will usually collapse
within
a few days. But here the coup attempt waivered between success and failure for
over a week, simply because of the lack of
a firm response from the President.
This failure was unsurprising, given that a significant number of members of the
police and army
favoured the aims of Speight, if not his
methods.[32]
This
lack of confidence in the reliability of the military has been shown to have
been justified. The Commander of the Republic of
Fiji Military Forces, Commodore
Frank Bainamerana, in declaring martial law, acted without lawful
authority.[33] In so
doing he completed what George Speight had been unable to do, namely to
overthrow the lawful authority of Fiji. Commodore Bainamerana
had no more right
to declare himself Prime Minister, or to appoint another to the post, than
George Speight
had.[34]
The litigation
The Court of Appeal of Fiji, a court constituted under the 1997 Constitution
and untouched by the military regime, was comprised of a bench of five judges,
led by the Rt Hon Sir Maurice Casey, as Presiding
Judge.[35] The Court
heard four days of arguments from Nicholas Blake QC, Anthony Molloy QC, Michael
Scott, Savenaca Banuve and Jai Udit for
the Appellants, the Republic of Fiji and
the Attorney-General of Fiji, and Geoffrey Robertson QC, George Williams, Anu
Patel and
Neel Shivarn for the Respondent, Chandrika Prasad.
On 4 July 2000
Mr Prasad, a citizen of Fiji, who had not held any office or appointment under
the 1997 Constitution, filed an originating summons in the High Court at Lautoka
seeking a Court ruling that the 1997 Constitution was still in force as the
supreme law of Fiji.
Gates J decided that Mr Prasad had standing to bring
the proceedings. His Lordship held that the Speight coup had not succeeded and
went on to consider the legality of the Commander's actions in the light of the
doctrine of necessity as applied in the field of
constitutional law. He
concluded that while the Commander had acted in accordance with that doctrine to
secure the safety of the
State, he had no genuine desire to remove the 1997
Constitution, and no need to pass the decree abrogating it (a point on which the
Court of Appeal was to differ from the High Court). Accordingly,
the Judge held
the 1997 Constitution was still in force.
On appeal, the Court of Appeal
concluded that the 1997 Constitution remains in force. This is an unexceptional
conclusion based on long-standing principals of constitutional law. A
revolutionary seizure
of power will eventually be legitimated. This, the Court
found, has not occurred. Consequently, the former Constitution, and any
government properly appointed under it, remains in force. Prime Minister
Laisenia Qarase, appointed after the coup, is not
in this category. President
Ratu Josefa Iloilo was however the Vice-President, and remains legally interim
President.
In one respect the judgement of the Court of Appeal appears suspect. The affidavit of Mr Qarase, the Interim Prime Minister, of 10 January 2001 annexed a letter from Ratu Mara dated 15 December 2000 which letter states:
Dear Prime Minister
“Pension Options
This is to confirm that I have retired and have elected my pension entitlements under the existing laws ... Should you require further information or clarification please do let me know.
Yours sincerely,
Ratu Kamisese Mara”.
Mr Qarase replied on 20 December:
“I write to acknowledge receipt of your letter dated 15 December 2000 informing me of your decision to take reduced pension and gratuity as retired President ... I wish to inform you. Sir, that in accordance with section 5(2) of the President's Pension Act, Cabinet, at its special meeting earlier today, has approved the pension entitlements that you have opted for... This would take effect from 15 December ... Following our Cabinet meeting earlier today, our Office is issuing the attached Press Release in relation to your decision on this matter..”.
The press release stated:
“The Interim Prime Minister, Mr Laisenia Qarase, announced today that he has received communication from the Right Hon. Ratu Sir Kamisese Mara confirming his decision to retire as President. His retirement is effective from 29th May 2000. The Prime Minister has acknowledged the communication from the retired President.”
In the words of the Court of Appeal, “[t]his correspondence makes it clear that Ratu Mara did not resign until 15 December when he wrote to the Interim Prime Minister”. In the respectful opinion of the writer this reading of the correspondence is not necessarily the correct one. It would appear a more natural interpretation that Ratu Mara was simply averring that by the 15th her had accepted that he was no longer President, not that his resignation necessarily became effective that day. The import of this distinction is, however, comparatively slight, and does not go to the heart of the matter, which was the legitimacy of the purported abrogation of the 1997 Constitution by the Commander of the Republic of Fiji Military Forces.
The actions of the military
On 29 May the Commander promulgated a decree purporting to abrogate the Constitution (Interim Military Government Decree No. 1). Decree No. 3 was also promulgated to establish an Interim Military Government. Clause 5(2) stated that the executive authority of the Republic of Fiji was vested in the Commander as the head of the Military Government.
On Sunday 11 June an advertisement by the Military Council appeared in the Fiji press “to explain the Martial Law currently imposed on the people of Fiji”. The advertisement stated:
“Martial Law may be defined as a temporary rule by Military authorities on a civilian population when the Civil Authority is unable to preserve public safety. The authority to declare and impose Martial Law may be derived from the constitution, in which case the constitution will still be in place when Martial Law is declared. In our case (Fiji) there is no provision in the constitution for the declaration and imposition of Martial Law, hence the Military Authorities, amongst other reasons have found it fit to set aside the constitution in its quest to restore public safety and law and order.”
Subsequently, the military authorities established a new government, and on 14 July the Great Council of Chiefs appointed Ratu Josefa Iloilo, the Vice-President under the 1997 Constitution,[36] as Interim President and Ratu Jope Seniloli as Interim Vice President. On 28 July the Interim Civilian Government Ministers were sworn in by the Interim President and took office under the Interim Civilian Government (Transfer of Executive Authority) Decree. The Interim Civilian Government remained the de facto Government of Fiji until the recent elections.
The Court of Appeal quoted with approval Professor FM Brookfield's Waitangi and Indigenous Rights Revolution. Law and Legitimation:[37]
“The courts, then, are under a duty to uphold the legal order of which they are part. But in doing so they may sometimes recognize as valid emergency action taken by the executive government or its armed forces which would be unlawful in normal circumstances but which is justified in times of extreme crisis by the principle of necessity. ..... “
The court’s duty to uphold the legal order is qualified by other
manifestations of the necessity principle, one of which, as
recognized by the
courts in some modern cases under written constitutions, has allowed temporary
and strictly limited deviations
from the constitution for the express purpose of
safeguarding it or for preserving the rule of law.
The Court believed that
the Commander quite properly contemplated executive action by way of martial law
to restore and/or maintain
law and order. This was appropriate, so long as the
extraordinary and frightening situation lasted.
However, the Commander
purported to change the legal order when he decided to abrogate rather than
suspend the Constitution on 29 May; he reinforced this change when he later
chose to install the Interim Civilian Government which has purported to govern
ever since.
The authority on necessity and the assumption of extra-constitutional power
The starting-point for any consideration of authority on this point is the Privy Council decision in Madzimbamuto v Lardner-Burke[38] which held as illegal the regime of Ian Smith in Southern Rhodesia set up under the 'Unilateral Declaration of Independence'.
Lord Reid said at pp 723-4:
“It is an historical fact that in many countries - and indeed in many countries which are or have been under British Sovereignty - there are now regimes which are universally recognised as lawful but which derive their origins from revolutions or coups d'état. The law must take account of that fact. So there may be a question how or at what stage the new regime became lawful. A recent example occurs in Uganda v Commissioner of Prisons, Ex parte Matovu [1966] EA 514. On February 22, 1966, the Prime Minister of Uganda issued a statement declaring that in the interests of national stability and public security and tranquillity he had taken over all powers of the Government of Uganda. He was completely successful, and the High Court had to consider the legal effect. In an elaborate judgment Sir Udo Udoma C.J. said:
“. . . our deliberate and considered view is that the 1966 Constitution is a legally valid constitution and the supreme law of Uganda; and that the 1962 Constitution having been abolished as a result of a victorious revolution in law does no longer exist nor does it now form part of the Laws of Uganda, it having been deprived of its de facto and de jure validity.” (at 539)
Pakistan affords another recent example. In The State v Dosso [1958] 2 PSCR 180 the President had issued a proclamation annulling the existing Constitution. This was held to amount to a revolution. Muhammed Munir CI said at 184:
“It sometimes happens, however, that a Constitution and the national legal order under it is disrupted by an abrupt political change not within the contemplation of the Constitution. Any such change is called a revolution, and its legal effect is not only the destruction of the existing Constitution but also the validity of the national legal order.”
Their Lordships would not accept all the reasoning in these judgments but they see no reason to disagree with the results. The Chief justice of Uganda (Sir Udo Udoma Cf) said at 533: “The Government of Uganda is well established and has no rival.” The court accepted the new Constitution and regarded itself as sitting under it. The Chief Justice of Pakistan (Sir Muhammed Munir Cf) said at 185: “Thus the essential condition to determine whether a Constitution has been annulled is the efficacy of the change.” It would be very different if there had been still two rivals contending for power. If the legitimate Government had been driven out but was trying to regain control it would be impossible to hold that the usurper who is in control is the lawful ruler, because that would mean that by striving to assert its lawful right the ousted legitimate Government was opposing the lawful ruler.
In their Lordships' judgment that is the present position in Southern Rhodesia. The British Government acting for the lawful Sovereign is taking steps to regain control and it is impossible to predict with certainty whether or not it will succeed. Both the judges in the General Division and the majority in the Appellate Division rightly still regard the “revolution” as illegal and consider themselves sitting as courts of the lawful Sovereign and not under the revolutionary Constitution of 1965. Their Lordships are therefore of opinion that the usurping Government now in control of Southern Rhodesia cannot be regarded as a lawful government.”
Relying on later cases, particularly Vallabhaji v Controller of Taxes,[39] Mitchell v Director of Public Prosecutions, Mokotso v H M King Moshoeshoe II,[40] Makenete v Lekhanya,[41] the Court of Appeal defined the 'efficacy' test, in the context of the common law of Fiji, as follows:
(a) The burden of proof of efficacy lies on the de facto government seeking to establish that it is firmly in control of the country with the agreement (tacit or express) of the population as a whole.[42]
(b) Such proof must be to a high civil standard because of the importance and seriousness of the claim.
(c) The overthrow of the Constitution must be successful in the sense that the de facto government is established administratively and there is no rival government.
(d) In considering whether a rival government exists, the enquiry is not limited to a rival wishing to eliminate the de facto government by force of arms. It is relevant in this case that the elected government is willing to resume power, should the Constitution be affirmed.
(e) The people must be proved to be behaving in conformity with the dictates of the de facto government. In this context, it is relevant to note that a de facto government (as occurred here) frequently re-affirms many of the laws of the previous constitutional government (e.g. criminal, commercial and family laws) so that the population would notice little difference in many aspects of daily life between the two regimes. It is usually electoral rights and personal freedoms that are targeted. As one of the deponents said, civil servants such as tax and land titles officials worked normally throughout the coup and its aftermath. Their functions were established and needed no ministerial direction. We derive little proof of acquiescence from facts of that nature.
(f) Such conformity and obedience to the new regime by the populace as can be proved by the de facto government must stem from popular acceptance and support as distinct from tacit submission to coercion or fear of force.[43]
(g) The length of time in which the de facto government has been in control is relevant. Obviously, the longer the time, the greater the likelihood of acceptance.
(h) Elections are powerful evidence of efficacy. It follows that a regime where the people have no elected representatives in government and no right to vote is less likely to establish acquiescence.
(i) Efficacy is to be assessed at the time of the hearing by the Court making the decision.
Time, and fresh elections, can confer new legitimacy upon usurpers.[44]
The conclusions reached by the Court of Appeal
The Court of Appeal then had to determine whether, on the evidence presented before us, we can be satisfied that (a) the Interim Civilian Government is firmly established and there is no rival government and (b) the people are behaving in conformity with the dictates of the Interim Civilian Government in such circumstances that their acquiescence can be inferred.
In respect of the first criteria, the Court was satisfied that there was evidence that demonstrates that there was a rival government seeking through the Courts to assert its authority to govern.
The evidence suggested that a significant proportion of the people of Fiji believed that the 1997 Constitution embodies and protects the ideals and aspirations of the different ethnic groups in Fiji. The material also indicated a widespread belief that there was no proper justification for its abrogation. The Interim Civilian Government faced an almost impossible task in demonstrating real acquiescence on the part of the people.
The Court of Appeal held that the burden of proving that the 1997 Constitution had been superseded lay on the Interim Civilian Government, and the standard of proof was a high one, having regard to the great public importance of the issues involved. In the absence of any convincing evidence of real acquiescence, they held that the Interim Civilian Government had not discharged the burden of proving acquiescence and had accordingly failed to establish that it is the legal government of Fiji. The purported abrogation of the 1997 Constitution had not been justified and it remained in place.
In conclusion, the Court held that:
(a) The 1997 Constitution remained the supreme law of the Republic of The Fiji Islands and has not been abrogated;
(b) Parliament had not been dissolved. It was prorogued on 27 May 2000 for six months;
(iii) The office of the President under the 1997 Constitution became vacant when the resignation of Ratu Sir Kamisese Mara took effect on 15 December 2000. In accordance with section 88 of that Constitution, the Vice-President could lawfully perform the functions of the President until 15 March 2001 unless a President is sooner appointed under section 90.
However, it is doubtful whether legal principles which themselves largely reflect a European heritage can alone provide a solution for Fiji's problems.[45] It is also questionable whether political disputes can and ought to be resolved in a court of law.
Whenever there is an introduction of foreign laws that challenges the special privileges of the elite, there is always opposition. Customary law is based on hierarchy and discriminates in the sense that power is bestowed upon the hands of a few members of society.[46]
Although Mr Qarase and Commodore Frank Bainamerana had said that they would abide by the decision of the Court, it remains to be seen whether they will feel able to do so, given the attitudes of their supporters.
Conclusions
We have now seen a return to democracy and to the rule of law in Fiji. But considerable harm has been done to the reputation of the country. In particular, great harm was done to the reputation of the Fijian military. Their responsibility was to uphold the Constitution and the political leadership of the country, not assume power in their own right. It is to be hoped that they, and the interim government, acquiesce in the Court of Appeal's decision. Matters will doubtless also he help if Mahendra Chaudhry keeps a low profile and refrains from asserting his own claim to the office of Prime Minister.
Legally, the decision of the Court of Appeal of Fiji in Republic of Fiji v Prasad is unexceptional. The function of the Court in deciding whether the Constitution remained in force was the purely legal one of deciding, as a matter of law, whether its purported abrogation by Commodore Bainimarama on 29 May 2000 achieved that result, or had done so since. It canvassed the authorities on revolutionary governments, and concluded that the Fijian government had failed to become established. The Court therefore upheld the previous Constitution, and, by extension, the office-holders under that Constitution.
What was unusual was that the respondent was not seeking to overturn a conviction imposed by a revolutionary court, or even avoid taxes levied by a usurping power. He was simply seeking the confirmation of a court that the former Constitution remained in force. It is also unusual that the very Government whose authority he was questioning chose to abide by the decision of a court. It is indeed promising that the example Fiji has set has not been totally negative. Political disputes can be resolved in peaceable ways.
An important lesson for the military forces of other Pacific countries should be learnt. An armed forces reflects, to a greater or lesser extent, the racial composition of the wider population, and must be taken to share their political aspirations. But their loyalty lies to the civilian government, and they should never presume to impose their own views on how the country should be run. Even where civilian government has collapsed (as arguably it had not in Fiji), the appropriate course of action is to assist the surviving legal authorities to regain control.
[1]Republic of
Fiji v Prasad (Unreported, Court of Appeal of Fiji, 1 March 2001, Civil
Appeal No.
ABU0078/2000S).
[2]Though
not the customary law; Jennifer Corrin Care, ‘The Status of Customary Law
in Fiji Islands after the Constitutional Amendment
Act 1997’ (2000) 4
Journal of South Pacific Law
1.
[3]Fiji
Constitutional Review Commission, Towards a United Future, Parliamentary
Paper No 34/96 (1996). Other members were Tomasi Rayalu Vakatora and Dr Brij
Vilash Lal. The 38 research papers commissioned
by the Commission were published
in two volumes as B V Lal and T R Vakatora (eds), Fiji in Transition and
Fiji and the World
(1997).
[4]On 27
July 1998, the Constitution Amendment Act 1997 (assented to by the President 25
July 1997), came into force, repealing the 1990 Constitution, and establishing
the Constitution of the Republic of the Fiji Islands 1997 in its place; s
193(2). The Constitution (Amendment) Act 1998 was subsequently passed, to
clarify certain doubts, tidy up drafting difficulties, and to emphasise that the
country’s name is “the Republic of the Fiji Islands”.
[5]Jennifer Corrin
Care, ‘The Status of Customary Law in Fiji Islands after the
Constitutional Amendment Act 1997’ (2000) 4 Journal of South Pacific Law
1. In particular, this saw new chapters covering a compact (chapter 2), social
justice (4), the Bose Levu Vakaturaga (Great Council
of Chiefs, chapter 8),
accountability (11), and group rights (13).
[6]s
90.
[7]New emergency
powers provisions in the 1997 Constitution (chapter 14) envisage that Parliament
will provide by statute for the power of the President, acting on the advice of
the Cabinet,
to proclaim a state of emergency (s 187).
[8]The Crown can
exercise powers not specifically conferred upon it to preserve constitutional
order, as in Grenada in 1983, and Fiji
in 1987; Mitchell v Director of Public
Prosecutions [1986] LRC (Const) 35; Smart, PStJ ‘Revolution,
Constitution and the Commonwealth: Grenada’ (1986) 35 ICLQ 950.
[9]According to the
Constitution, emergency measures may not derogate from certain Bill of Rights
provisions (chapter 4), unless certain conditions are met. These
include such
matters as the Cabinet’s ‘reasonable grounds’ for belief in
the necessity of emergency measures, confirmation
of the proclamation by the
House of Representatives within five sitting days, and a limitation on its
initial period to three months.
The protected provisions include ss 23 (personal
liberty), 24 (freedom from servitude and forced labour), 30 (freedom of
expression), 31 (freedom of assembly), 32 (freedom
of association), 33 (labour
relations), 34 (freedom of movement) and 37
(privacy).
[10]The
President is the Commander-in-Chief of the military forces (s 87), as well as
having the executive authority of the state vested in him (s 85). The Commander
of the Republic of Fiji Military Forces, who is appointed by the President on
the advice of the Minister, is to exercise
military command of the forces,
subject to the control of the Minister; s
112.
[11]F M
Brookfield, ‘The Fiji revolution of 1987’ [1988] NZLJ 250-56,
251.
[12]Mitchell
v Director of Public Prosecutions [1986] LRC (Const) 35; [1987] LRC (Const)
127; Smart, above n
8.
[13]Reference
Re Language Rights under the Manitoba Act 1870 (1985) 19 DLR (4th) 1
(SCC).
[14]Brookfield,
above n
11.
[15]Fiji
Independence Act 1970, Fiji Independence Order
1970.
[16]Fiji
Royal Gazette, vol 114, No 38, of that
day.
[17]Brookfield,
above n 11.
[18]s
70
(1).
[19]Attorney-General
v De Keyser's Royal Hotel [1920] UKHL 1; [1920] AC
508.
[20]Victoria
v The Commonwealth [1975] HCA 39; (1975) 134 CLR 81, 120,
178.
[21]Brookfield,
above n 11, 252. The abrogation of the Constitution in 1987 was implicitly
recognised in the Preamble to the 1997 Constitution, which states inter
alia that “acknowledging our unique constitutional history ... the
abrogation of that Constitution [of 1970] in 1987 by the Constitution Abrogation
Decree
1987”.
[22]The
Governor was appointed on the recommendation of the Rhodesian Prime Minister,
and was not responsible to the Secretary of State
for Colonial Affairs.
[23]Frank
Clements, Rhodesia: the Course to Collision (1969)
232-250.
[24]With
the usurpation of authority by the Smith regime, the British Government
reasserted its legal supremacy, as it was entitled to
do, given that Rhodesia
had never formally been granted independence. Gibbs, as the representative of
the Queen, represented constitutional
legitimacy.
[25]Peter
Larmour Legitimacy, Sovereignty and Regime Change in the South
Pacific: Comparisons Between the Fiji Coups and the Bougainville
Rebellion
(1992).
[26]Indeed,
there is also a residual legislative function remaining to the Crown;
Tamizuddin Khan's Case reprinted in Sir Ivor Jennings, Constitutional
Problems in Pakistan (1957) 79 et seq (Federal Court of Pakistan).
[27]Sir Zelman
Cowen, ‘Understanding the office of Governor-General of Australia’
(1994) 108 Australian Defence Force Journal
47-51 and (2001) 148 Australian
Defence Force Journal 21-26; Interview with Sir David Beattie, 15 April 1998;
Interview with Dame
Catherine Tizard, 19 May
1998.
[28]Interview
with Sir David Beattie, 15 April 1998; Interview with Dame Catherine Tizard, 19
May 1998.
[29]This
is of course a reflection of the role of the Queen, who maintains a close
relationship with the armed forces of her realms, and,
especially with the
troops of the Household Division in the United Kingdom.
[30]Militia Act
1662 (13 Chas II St 1 c
6).
[31]The
Governor-General, although also Commander-in-Chief, does not raise troops in his
or her own name. Section 5 of the Defence Act
1990 provides that: The
Governor-General may from time to time, in the name and on behalf of the
Sovereign, continue to raise and
maintain armed forces, either in New Zealand or
elsewhere, for the following purposes
...
[32]On 29 May
the Commissioner of Police wrote to the President to advise “that the Fiji
Police Force can no longer guarantee the
security of the nation”. He
requested the President to invoke the Public Emergency Regulations and ask the
Armed Services to
perform all duties and functions of police officers;
Republic of Fiji v Prasad.
[33]Ratu Mara deponed in an affidavit of 6 November 2000 that, “I indicated that if the Constitution were to be abrogated, I would then not return to the Office of President”. The Commander then assumed executive authority as “Commander and Head of the Interim Military Government of Fiji”; Republic of Fiji v Prasad.
[34]The
(1997) Constitution provides that the Prime Minister shall be “the member
of the House of Representatives who, in the President’s own judgment,
can
form a government that has the confidence of the House of Representatives”
(s 98).
[35]The Rt
Hon Sir Maurice Casey, and the Hon Sir Ian Barker, the Hon Sir Mari Kapi, the
Hon Mr Justice Gordon Ward, the Hon Mr Justice
Kenneth Handley, Justices of
Appeal.
[36]This
was a new position under the 1997 Constitution; s 88. As with the President, the
appointment was to be made by the Great Council of Chiefs (Bose Levu
Vakaturaga), after consultation with
the Prime
Minister.
[37](1999),
20.
[38][1968] UKPC 2; [1969] AC
645
(PC).
[39](Unreported,
Court of Appeal of the Seychelles, 11 August
1981).
[40] [1989]
LRC (Const) 24 (High Court of
Lesotho).
[41][1993]
3 LRC 13 (Lesotho Court of
Appeal).
[42]Seymour
Martin Lipset, ‘Social Conflict, Legitimacy, and Democracy’ in
William Connolly (ed), Legitimacy and the State (1984) 88-103,
92.
[43]The
principle of popular sovereignty, hitherto vague, has acquired sufficient
determinacy to serve, in a limited range of circumstances,
as a basis for denial
of legal recognition to putative governments; Roth, Brad, Governmental
illegitimacy in international law (PhD thesis University of California,
Berkeley,
1996).
[44]See F M
Brookfield, Some aspects of the Necessity Principle in Constitutional Law
(DPhil thesis, University of Oxford,
1972).
[45]In his
affidavit of 6 November 2000 sworn in other proceedings, but included by consent
in material filed in Court at the start of
the hearing, Ratu Sir Kamisese Mara
(the President of Fiji at the time of the coup attempt by George Speight)
recorded that the Commander
had informed him that in his opinion the 1997
Constitution did not provide a framework for resolving the crisis and should be
abrogated.
[46]Laitia
Tamata, ‘Application of Human Rights Conventions in the Pacific Islands
Courts’ (2000) 4 Journal of South Pacific
Law Working Papers 4.
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