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Research School of Pacific and Asian Studies State, Society and Governance in Melanesia StateSociety and in Governance Melanesia DISCUSSION PAPER

Discussion Paper 2008/10

Courts and Coups IN : THE 2008 High Court Judgment in Qarase v Bainimarama

Introduction not provided for in the constitution, and that GEORGE ‘exceptional circumstances existed’ because WILLIAMS On 21st October 2008, the State, Society ‘the stability of the State was endangered’. & Governance in Melanesia Program held a The decision effectively legitimised the interim GRaHAM workshop entitled Courts and Coups; Fiji’s government that had emerged in the wake of LEUNG October 2008 High Court Judgment in the Fiji’s December 5 2006 military coup. Qarase v Bainimarama Case. This brought together George Williams, the Anthony In the first of the four papers included ANTHONY J. Mason Professor in the Faculty of Law at here, Professor George Williams, who REGAN the University of New South Wales, Graham served as Counsel in the 2001 Chandrika Leung, the Managing Partner of Howards Prasad case - which ruled the government JON Lawyers in , as well as Anthony Regan that arose after Fiji’s 2000 coup to be illegal FRAENKEL and Jon Fraenkel from the State, Society - discusses the precedents set by that earlier & Governance in Melanesia Program at case, and how these were dealt with by the ANU. The meeting was chaired by Duncan Fiji judges in 2008. In the second paper, Kerr, ’s Parliamentary Secretary for Graham Leung, a lawyer who practises in Fiji Pacific Affairs. and was formerly Chairman of the Electoral Commission, discusses the changing role The objective of the workshop was to of the judiciary in Fiji. In the third paper, discuss a judgment by Fiji’s High Court Anthony Regan considers whether the 2008 on 9th October 2008 which found that the Fiji Court ruling was, as it claimed to be, a President’s actions in appointing an interim purposive interpretation of Fiji’s constitution, cabinet in January 2007, and in continuing to and examines the scope for presidential rule by decree in the wake of Fiji’s December exercise of prerogative powers granted by 5th 2006 coup, ‘were valid and are held to the 1997 constitution. In the final paper, Jon be lawful’. The judges declared that Fiji’s Fraenkel examines the political context of the President held certain ‘prerogative powers’ 2008 judgment and its likely consequences. Courts and Coups in Fiji: The 2008 High Court Judgement in Qarase v Bainimarama

Qarase v Bainimarama and the rule of law and the existing legal order, 2 the rule of law in Fiji and, therefore, cannot be applied to uphold the legality of a new revolutionary regime. The latter can only be achieved under the George Williams doctrine of ‘effectiveness’. According to FM Brookfield, a leading writer in this field: On 29 May 2000, the Commander of the the power of a under a Fiji Military Forces issued a decree abrogating written Constitution extends by implication the 1997 Fijian Constitution (the Constitution). to executive acts, and also to legislative Nine months later on 1 March 2001, the acts taken temporarily (that is, until Court of Appeal of Fiji in Republic of Fiji v confirmed, varied or disallowed by the Prasad upheld an earlier High Court decision lawful Legislature) to preserve or restore the that the 1997 Fiji Constitution remained in Constitution, even though the Constitution force as the supreme law of Fiji. Immediately itself contains no express warrant for them. after the decision, the Prime Minister of (Brookfield, 1988, p. 47). the Interim Civilian Government, which had been installed by the Fiji Military Forces, This construction of the necessity doctrine stated that the nation would be returned to is consistent with decisions of the Supreme democratic rule under the Constitution. Court of Pakistan (Bhutto v Chief of Army These events, centring upon the decision Staff 1977 p. 723, 728, 753; Zafar Ali Shah of the Court of Appeal, were an important v Pervez Musharraf 2000 p.1160-1161 per landmark in the history of the common law. It Irshad Hasan Khan CJ), where it has been was the first, and so far as I am aware the still held that emergency action cannot be taken the only, time that the leaders of a coup d’etât under the principle of necessity in order to voluntarily submitted to the jurisdiction of a subvert the existing constitutional structure court only months after a takeover. It is also (See also Texas v White, 1862 p.733 per the first time that a court decision restored a Chase CJ; Madzimbamuto v Lardner-Burke Constitution, and the democratic system of 1968 p. 441 per Fieldsend AJA; Mokotso v government created by it. By contrast, the HM King Moshoeshow II 1989 p. 122 per October 2008 judgment in Cullinan CJ). Hence, the doctrine cannot Qarase v Bainimarama gave legal recognition authorise the abrogation of the existing legal to an otherwise unlawful usurper. order, only its temporary suspension. In the context of the 2000 coup in Fiji, the necessity doctrine was applied by Justice Necessity and Effectiveness and the Gates of the High Court (in Prasad v Republic Prasad Litigation of Fiji 2001 p.665) to find that actions of the When asked to determine the legality of a and the Commander of the coup or coup-like events, courts usually use Fijian Military could be regarded as lawful one of two alternative analytical methods, insofar as they were designed to resolve called necessity and effectiveness. There the hostage crisis and to uphold the 1997 is no reference to either doctrine in the text Constitution. Justice Gates’ preparedness of the 1997 Fiji Constitution, but, as in other to apply the doctrine was based upon his constitutional systems (see, for example, finding that there had been no genuine desire Attorney-General v Ibrahim 1964), the on the part of the Commander to abrogate necessity doctrine at least was seen by the the 1997 Constitution: Fijian courts in Prasad as being necessarily implied into the instrument as a means of Commodore Bainimarama is clearly no ensuring its preservation. usurper. Having acted as he thought best in a temporary but dire hostage crisis, he Courts have recognised a principle of handed over power to a civilian caretaker necessity that dictates that, in times of extreme administration. Necessity would permit him crisis, emergency action may validly be taken to suspend the Constitution just for so long that would otherwise be illegal. Such action, as to allow him to free the hostages and to including a declaration of martial law, must restore law and order. That concluded his be a transient and proportionate response to role. the crisis. It may be invoked only to uphold Courts and Coups in Fiji: The 2008 High Court Judgement in Qarase v Bainimarama

Gates ordered that ‘[t]he revocation of the urged on behalf of Prasad, namely, whether 1997 Constitution was not made within the the new regime acknowledges basic human 3 doctrine of necessity and such revocation rights as evidenced by international obligations was unconstitutional and of no effect’ and assumed by the nation (Robertson, et al, ‘[t]he , consisting of the 2001p.151). President, the Senate, and the House of On the evidence before it, the Court Representatives, is still in being.’ He stated held that the effectiveness test was not that ‘the military is invited and recommended satisfied for two reasons. First, there was a by the court to ensure a smooth and amicable rival government striving for power. Affidavits hand over of Government to that which had been filed by former Prime Minister will soon be chosen by the incoming Prime Chaudhry and by members of his Cabinet Minister’. that claimed that the Peoples Coalition was ‘ready and willing’ to resume office under By contrast, under the effectiveness the 1997 Constitution. Second, although doctrine a court exercises a supra- the Interim Civilian Government was able to constitutional jurisdiction in determining demonstrate the continuing operation of the whether a revolution or coup ought to be administration of government throughout the given legal recognition in place of the deposed attempted coup and its aftermath, this was political order. The idea is that if a coup is insufficient to prove popular acceptance and effective, it ought to be given recognition on support for the Interim Civilian Government. the basis that there is no practical point in The Court found that ‘passive compliance doing otherwise. One test for determining is hardly a persuasive indication of true effectiveness was set out by Cullinan CJ of acquiescence in a government which has the High Court of Lesotho in Mokotso v HM been in power for only about seven months King Moshoeshow II (1989 p. 133): and severely restricts public protest’. A court may hold a revolutionary government to be lawful, and its acts to have been legitimated ab initio, where it is satisfied The Decision in Qarase v Bainimarama that (a) the government is firmly established, This case arose out of the December there being no other government in 2006 military take-over of Fiji. The previous opposition thereto; and (b) the government’s 18 months had been characterised by administration is effective, in that the increasing ill-will and conflict between the majority of the people are behaving, by and Republic of Fiji Military Forces (RFMF) and large, in conformity therewith. Government of Prime Minister over matters such as: In the earlier decision of Mitchell v Director of Public Prosecutions (1986 p. 72), Haynes • the 2000 coup and the Reconciliation P of the Court of Appeal of Grenada, included Tolerance and Unity Bill; two further elements: • an investigation into the actions of the (c) such conformity and obedience [must be] Military Commander, Commodore due to popular acceptance and support and ... Bainimarama; not mere tacit submission to coercion or fear • the RFMF seeking the termination of the of force; and (d) it must not appear that the contract of the Commissioner of Police; regime was oppressive and undemocratic. and The Court of Appeal of Fiji in Republic • the RFMF stating the greatest threat to of Fiji v Prasad found that the formulation Fiji’s national and economic security was of the effectiveness test in Mokotso was the ‘lack of good governance under the ‘too narrowly expressed’. It was prepared to present cloak of democracy’. accept element (c) of the Mitchell test, but doubted the correctness of (d). While the On 5 December 2006 the RFMF took Court recognised ‘the modem shift towards control of the streets of Suva. That evening, insistence on basic human rights in a raft of an Extraordinary Fiji Gazette notice was international treaties and, more importantly for issued in which the Commander stated that: present purposes, the 1997 Fiji Constitution’, At approximately 1800 hours tonight Tuesday it was not prepared to further extend the 5th December 2006 I have with much effectiveness test by adding a new criterion Courts and Coups in Fiji: The 2008 High Court Judgement in Qarase v Bainimarama

reluctance assumed executive authority of had come to survive the transition of Fiji 4 the country and henceforth declared a State into a republic, let alone the codification of of Emergency. the powers of the President of Fiji in the Constitution (which does not include any The Commander dismissed the Prime mention of the prerogative powers). Minister and the rest of the Fijian Government and appointed Dr Jona Baravilala Senilagakali Nevertheless, the Court found that as Caretaker Prime Minister to advise the the President of Fiji had inherited powers dissolution of Parliament. including: On 4 January 2007 Mr Senilagakali the power to wage foreign wars, to make tendered his resignation as Caretaker Prime treaties, to defend the realm, to grant honours, Minister. That day, the Commander handed to preserve the State from civil strife, and to back executive power to the President of Fiji, act in an emergency to ensure the well-being Uluivuda, who endorsed and safety of the people. [emphasis added] the actions of the Commander and the RFMF ‘in acting in the interest of the nation and most The Court recognised that prerogative importantly in upholding the Constitution’. powers remain only if not ‘superseded by statute, eroded by judicial decision or On 5 January 2007 the President appointed atrophied by neglect or disuse’. It found that an interim government with the Commander these powers had not been displaced by the as Interim Prime Minister. He also: Constitution. • ratified the dismissal of the Prime Minister, On this basis, the Court upheld the actions Cabinet and the Ministers of State, the of the President: appointment of a Caretaker Prime Minister and the dissolution of Parliament. The President’s decision in short was to exercise prerogative powers to rule directly • promulgated an unconditional grant of until suitable elections could be conducted immunity to the Commander, the Caretaker … The details of how all of this was to be Prime Minister, all officers and members of achieved did not affect or deflect from the the RFMF and the other branches of the President’s clear intention to act to save the disciplined services; and country from its strife, or affect the legality • provided for legislation to be made by of his acts within the scope of the ultimate decree. reserve powers. The key question for the High Court Therefore, the Court held: bench of Acting Chief Justice Gates and We also do not find that the President’s Judges Byrne and Pathik was the validity actions consolidated any revolution. The of these acts by the President. The Court Constitution remained and remains intact. handed down a unanimous judgment on 9 October 2008 that sidestepped the necessity It also went onto say, in a statement and effectiveness doctrines. that could not have been reached using the The Court held that all of the acts by necessity doctrine (which would have only the President occurred consistently with the allowed such extraordinary action, if at all, for 1997 Fiji Constitution. This was based on a strictly limited time): the giant legal fiction that the Constitution we do not find it appropriate to issue could accommodate such extraordinary directions as to a definite timetable for the undemocratic acts without itself being holding of elections. No doubt the President compromised. In effect, the Court held that will have uppermost in his mind the twin there had been no coup. imperatives of the sanctity of fair elections The Court reached its conclusions based on the one hand and the need for urgent upon a reading of the prerogative powers return to democratic rule on the other. of the President. These powers derived originally from the ancient rights of the British Critique Crown, and have been held over time in other The decision of the High Court of Qarase nations by representatives of the Crown v Bainimarama can be criticised on four main such as the Governor General of Australia. grounds. First, reliance upon the prerogative The Court did not examine how this power Courts and Coups in Fiji: The 2008 High Court Judgement in Qarase v Bainimarama

powers of the President to support actions The anomaly is made even more stark by such as the dismissal of the Prime Minister the fact that the Constitution also provides 5 and rule by decree cannot be sustained. One in detail in Chapter 14 for the exercise of of the central problems with the judgment ‘Emergency Powers’ by the President. For is that it does not even make the case as example, to how the prerogative power can still exist Emergency powers in Fiji. The prerogative normally describes 187.-(1) The Parliament may make a law certain powers held by the monarch or her conferring power on the President, acting on representatives in a nation that has not yet the advice of the Cabinet, to proclaim a state become a republic. It is possible that such of emergency in Fiji, or in a part of Fiji, in powers may have survived the transition to such circumstances as the law prescribes. a republic in Fiji, but this is by no means (2) The law may include provisions certain, and is not something that has been conferring on the President the power to made out in the judgment. make regulations relating to the state of Even if the prerogative has survived in emergency. Fiji, one of the most basic rules governing … the prerogative is that it can be displaced Summoning of House of Representatives by other law. Where Fijian statute law or 188.-(1) Upon the proclamation, of a state of the Constitution is inconsistent with any emergency, the President must summon the prerogative power, the prerogative power House of Representatives to meet. cannot be used. This is clearly the case with …. regard to some exercises of the prerogative Powers of House of Representatives powers identified as lawful by the High Court. 189.-(1) The House of Representatives may, For example, section 96 of the Constitution at any time, disallow a proclamation of a provides that the president must only act on state of emergency. advice, subject to certain express exceptions. One of these exceptions is the explicit circumstances set out in the Constitution in Second, the decision of the High Court which the president may dismiss a prime furthers the possibility of there being an minister. The president ‘may not’ dismiss a ongoing cycle of coups in Fiji. Even if the prime minister except in the circumstances military had genuine concerns about the set out in s 109 of the Constitution: Fijian Government that led to the December 2006 takeover, the law as applied by the Dismissal of Prime Minister High Court provides a basis for similar action 109.(1) The President may not dismiss a in the future, regardless of whether or not Prime Minister unless the Government fails any concerns are genuine. The Court found to get or loses the confidence of the House of that, in order for the President to act, it was Representatives and the Prime Minister does enough that there was a political crisis. It not resign or get a dissolution of the Parliament. was not necessary to identify the rights and wrongs of that crisis. Far from putting a break Remarkably, the High Court recognised on illegal action, the High Court decision that the dismissal of the prime minister and provides a precedent whereby the military or other actions had not been carried out in another party in Fiji may precipitate a crisis compliance with the Constitution: and then benefit from that crisis through ratification by the president. The decision is The dismissal of Mr Qarase as Prime Minister, even wide enough to provide a precedent the dismissal of the Cabinet, the appointment for similar action in other Pacific nations. of a Caretaker Prime Minister to advise on The decision suggests that the prerogative the dissolution, and the dissolution itself, power can be used to sustain future coups were not carried out in compliance with the in Fiji or elsewhere in a way that suggests above sections. that there has been no coup at all but merely This should have been a very straight emergency action taken under the current forward answer to any suggestion that the legal order. prerogative could be relied upon. It is unheard Third, the decision defies political reality in of for the prerogative to give power to a suggesting that the President could exercise president that can be exercised contrary to a a prerogative power appropriately in such fundamental law such as the Constitution. Courts and Coups in Fiji: The 2008 High Court Judgement in Qarase v Bainimarama

circumstances. Where the President has If nothing should be done but what is 6 come back into office specifically in order to according to law, the throat of the nation ratify what otherwise would have been the might be cut while we send for someone to illegal actions of coup leaders, there are real make a law. questions about whether the power can be exercised properly and impartially. It is a good quote, but one that is hardly consistent with the rule of law. Fourth, the decision undermines rather than sustains the rule of law in Fiji. One of the most fundamental aspects of the AUTHOR NOTES rule of law is the powers of a monarch or George Williams is the Anthony Mason president must be checked and limited lest Professor and Foundation Director, Gilbert + they be exercised in arbitrary circumstances. Tobin Centre of Public Law, University of New In this case, the powers of the President South Wales; in the Prasad litigation have been interpreted so broadly that they over 2000-2001 in the High Court and Court can encompass the dismissal of the Prime of Appeal of Fiji and barrister in other matters Minister, the dissolution of Parliament, rule by in the . Parts of this decree and a grant of immunity to those who paper are developed from George Williams, took over the nation. Moreover, his powers ‘The Case that Stopped a Coup? The Rule have been defined in a way that there is no of Law and Constitutionalism in Fiji’ (2001) time limit to their exercise. This is in direct 1 Oxford University Commonwealth Law contrast to the use of other legal principles, Journal 73. such as that of necessity, which require a proportionate and time-limited response. REFERENCES This interpretation of the prerogative Attorney-General v Ibrahim (1964) Cyprus powers is not suitable for any modern Law Reports 195. constitution in a democratic nation. It instead Bhutto v Chief of Army Staff (1977) PLD SC takes Fiji back to a time centuries ago in 657. which, as recognised in the High Court judgment, ‘the kings of England reigned Brookfield, F. 1988. ‘The Fiji Revolutions of as absolute monarchs’. The decision in a 1987’ [1988] Law Journal 250 clear step backwards for constitutional law, at 251. and the rule of law, in Fiji. The unfettered Mokotso v HM King Moshoeshow II (1989) nature of the prerogative powers held by the High Court of Lesotho, LRC (Const) 24. President was explicitly recognised by the High Court. It found: Madzimbamuto v Lardner-Burke (1968) 2 SA 284. The Crown must be free to take whatever pro-active action it considers necessary for Mitchell v Director of Public Prosecutions the protection of the State. (1986) LRC (Const) 35. Republic of Fiji v Prasad (2001) 2 LRC 743. In effect, the Court accepted the Robertson, G., Williams, G., Patel, A. and submission of Commodore Bainimarama and Shivam, N. 2001. ‘Republic of Fiji v Prasad: the RFMF that: Respondent’s Brief’, 2 Journal of the scope of the prerogative exercisable in International Law 151. a national crisis upon which the President Texas v White, (1862) 74 US (7 Wall) 700. drew, was necessarily expansive, malleable and unchecked. He said the safety of Qarase v Bainimarama, (2008), unreported, the nation must be within the unfettered Fiji High Court, 9 October 2008. control of the executive, and therefore the Zafar Ali Shah v Pervez Musharraf, Chief prerogative reserves to the executive a Executive of Pakistan (Pakistan Petitions virtually unreviewable discretion as to what Case) (2000) 33 Supreme Court Monthly the national security requires. Review 1137.

The Court even quoted Oliver Cromwell, Mokotso v HM King Moshoeshow II (1989) himself a usurper, who said: LRC (Const) 24. Courts and Coups in Fiji: The 2008 High Court Judgement in Qarase v Bainimarama

Qarase v Bainimarama acts of the President after his restoration on - the Decision that January 4th 2007 that were examined in that 7 judgment. The court’s decision sidestepped Consolidated a Coup the familiar necessity and effectiveness D’État doctrines, which had proved decisive in the court cases after the previous 2000 coup (see George Williams article in this collection), Graham Leung and instead found that the President was acting in a lawful and valid fashion. The long term ramifications of the Justices The decision elevates the President to the Gates, Byrne and Pathik’s decision in position of a ‘super-constitutional authority’ Qarase v Bainimarama are far-reaching. The accountable to no one. The rationale for judgment provides a strained interpretation the decision is that the President of Fiji, of the Fiji constitution and ignores the under the 1997 Constitution, allegedly has underlying democratic values that underpin ‘reserve powers’ that go well beyond powers that supreme law. It will undermine the explicitly provided for in the Constitution. rule of law, democracy and parliamentary However, these ‘prerogative powers’, which institutions rather than strengthen them. It is are held to originate from the British monarch not just weak law, but bad law. I believe that should not be applied to Fiji. When Fiji the decision is bizarre and perverse. Let us was made a republic in September 1987 first consider some of the background facts, by , it also eliminated that and the sequence of events at the time of link with the British Crown. Since then, and in the aftermath of the 2006 coup. Fiji has been a sovereign republic with its On December 5th 2006, there was a own written constitution. Once Fiji became military takeover of the government of Prime a sovereign republic, any such residual Minister Laisenia Qarase by the Fiji army. It powers were eliminated and the President was preceded by 18 months of ill will and became subordinate to the Constitution. The antagonism between the military and the President’s powers are limited to what is government. On the day of the coup, the contained in the Constitution. They cannot be military commander dismissed the Prime enlarged in the sweeping way suggested by Minister and appointed a civilian doctor as the the High Court. ‘caretaker’ Prime Minister to advise dissolution Nearly all of the cases cited in the Qarase of parliament. On December 6th 2006, the v Bainimarama judgment relate to former Commander ‘stepped into the shoes of the British colonies. Most are from the pre-World President’ and purported to act in that role as War Two era, usually from Pakistan or . the repository of executive power, dismissing In these cases, the ‘prerogative powers’ senior public service and ruling by decree. being discussed were those of a colonial On January 4th 2007, Dr Governor or Governor General either running tendered his resignation as ‘caretaker’ Prime the country or in the position of Head of State. Minister. That afternoon, the Commander Yet once Fiji became a sovereign democratic purported to hand back executive power to republic – as opposed to a dominion within the President, who endorsed the actions the Commonwealth with the Queen as Head of the military commander ‘in acting in the of State – the ‘prerogative powers’ that existed interest of the nation and most importantly in colonial circumstances were eliminated in upholding the Constitution’. On January and the President became subordinate to 5th 2007, the President appointed an interim the Constitution (in particular, to S85 of government with the Commander as interim the 1997 Constitution). In other words, the Prime Minister. He also ratified the dismissal of fundamental assumption in the Gates et al the elected Prime Minister, Laisenia Qarase, decision is erroneous. and his cabinet, endorsed the dissolution of parliament and promulgated an unconditional In the 1997 constitution, the President grant of immunity to the military. of Fiji is given very specific powers, for example to proclaim a ‘state of emergency’ It was not the actions of the Commander (see S. 187). Yet, in this and in most other on 5th December 2006 that were the subject critical cases, the President only acts ‘on of judicial scrutiny by Gates et al in October advice’, either of the Prime Minister, his 2008. It was rather the lawfulness of the Cabinet or one or other member of Cabinet Courts and Coups in Fiji: The 2008 High Court Judgement in Qarase v Bainimarama

or the Leader of the Opposition. In the Gates ‘intention’ of the framers of that fundamental 8 et al decision, there is talk of the head of document. Instead, it paid attention primarily state being in an ‘entirely different, special to the ancient rights of the English sovereign. and singular category’. It is said that ‘no Justice Gates, whose decision in the one has suggested His failed November 2000 Chandrika Prasad case to act honestly, impartially, neutrally and in had won him much acclaim, has in 2006 what he gauged to be the best interests of proved prepared to turn his earlier judgment the nation, that is, of all the inhabitants of on its head, and find in favour of an interim Fiji’ (Court of Appeal 2008). This pays little government that emerged as a result of a attention to the reality of the situation in military coup. To respond that, had such a contemporary Fiji, and conflicts with widely decision not been made or had the interim prevalent perceptions of the current state of government been declared illegal, the military health of Fiji’s President. The octogenarian might have opted to abrogate the constitution president, who is 87 years of age, was in all is no viable defence. Judges are expected probability unable to deal with complexities of to act without fear or favour, and to uphold the architecture of the post-coup Fiji situation. the rule of law, not to assess whether doing It is difficult to believe, as suggested by Gates so might jeopardise the security situation. et al, that he had the wherewithal to steer In any case, if the intention is to ‘save the any course through the January 2007 crisis. constitution’, why was a judgment made There is a strong body of opinion in Fiji of the back in November 2000 that upheld the view that the President is a ‘military stooge’. Constitution? Back at that time, the decision Yet few people are prepared to discuss this to uphold the 1997 Constitution might equally because of cultural reasons, and in particular have provoked a hostile response, and led because of the President’s high standing as the government to choose to abrogate that a traditional chief from Vuda (in Western Viti fundamental law. To respond differently in Levu). the post-2006 coup circumstances smacks of political bias. The Gates et al ruling in Qarase v Bainimarama made no reference to pivotal The Qarase v Bainimarama decision has elements of the 1997 Constitution, which rewarded constitutional usurpers and sends would normally provide vital guidance to the wrong signal to elements in Fiji that judges making decisions on constitutional are bent on taking the path of seeking issues. In S. 3, of the 1997 constitution, it to displace an elected government. It sets states, an unfortunate precedent especially in a country that has experienced four coups. In the interpretation of the constitution: It allows the military to provoke a crisis (a) a construction that would promote the and then obtain Presidential approval for its purpose or object underlying the provision, actions. In the year 2000, George Speight’s taking into account the spirit of this coup failed. He was imprisoned, and is Constitution as a whole, is to be preferred to serving a life sentence. In the year 2006, a construction that would not promote that ’s coup succeeded. As purpose or object; and a result, he is the so-called ‘interim Prime (b) regard must be had to the context in Minister’. Even the schoolchildren of Fiji which this Constitution was drafted and to are talking about the strangeness of the the intention that constitutional interpretation Gates et al decision, and the contrasting take into account social and cultural experience after the two coups. It is very developments, especially: confusing in terms of trying to establish a moral compass for the nation. It shows that (i) developments in the understanding of it is the victors that write the history books, the content of particular human rights; and that if you want to mount a coup d’etat, and you had better be sure it succeeds. The (ii) developments in the promotion of court’s decision has therefore caused much particular human rights (Fiji Constitution anguish, consternation and confusion. Many 1997 Ch. 1. S. 3). people are wondering whether the courts are independent any more. Yet the Gates et al judgment indicated no reference to, or inquiry into, the ‘context Since the Qarase v Bainimarama judgment in which this Constitution was drafted’ or the there has been an attempt to muzzle free Courts and Coups in Fiji: The 2008 High Court Judgement in Qarase v Bainimarama

speech and to halt any healthy intellectual of the original claims pleaded. There was discussion and critique of the High Court’s perhaps too much complacency and now 9 decision. Those who expressed views not in they are surprised that they have come out support of the judgment have been accused the losers. The stakes going into the Qarase of being in ‘contempt of court’. There has v Bainimarama court case were huge. been a tendency in some quarters in Fiji to The ousted government may have under- suggest that judges are somehow beyond estimated the dangers. Now they have to criticism, or that any criticism constitutes an live with the consequences. And it is hurting ‘attack on the judiciary’. Such views elevate them. More importantly, it is hurting Fiji. It judges to being synonymous with the law or, is hard to say just how much more bruising worse still, above it. In other jurisdictions, body blows the Constitution can put up with. public scrutiny of court verdicts is welcomed. As Derek Schofield, a former Chief Justice In the November 2000 Chandrika Prasad of Gibraltar, has remarked; ‘it is right and judgment, Justice Gates made favourable proper that a judge’s decisions should be reference to dicta of Fieldsend, A.J.A. in open to public and press comment and Madzimbamuto v Lardner-Burke (1969): even criticism’ (Schofield 1999). In Ambard Nothing can encourage instability more v Attorney-General of Trinidad & Tobago, than for any revolutionary movement to it was held that ‘any man may criticize a know that, if it succeeds in snatching power, decision of a court even in an outspoken it will be entitled ipso facto to the complete manner’. Criticisms per se of decisions of a support of the pre-existing judiciary in their court do not amount to ‘Contempt of court’ judicial capacity. It may be a vain hope that as Fiji’s interim Attorney General alleges. the judgment of a court will deter a usurper, On the contrary, ‘contempt of court is an or have the effect of restoring legality, but act or omission calculated to interfere with for a court to be deterred by fear of failure the due administration of justice’ (Attorney is merely to acquiesce in illegality. It may General v Butterworth 1963, see also R be that the court’s mere presence exercises v Gray 1900). The public criticism of the some check on a usurper who prefers to Gates et al judgment took place after the avoid a confrontation with it. (High Court judges had announced their verdict. So it of Fiji, 2000) could in no sense be construed as an effort to interference with the administration of In line with this interpretation of the duty of justice. the Court in post-coup circumstances, Justice Judges are not the law. They are not Gates at that point drew the conclusion that: immune from criticism. They are not above the law. To try suppress dissenting views by 1. Judges should remember their oaths of suggesting that these are improper, or even judicial office to uphold the Constitution. illegal, is to stifle democratic debate about The presumption is that the Constitution the basis of the Qarase v Bainimarama remains unimpugned until pronounced decision and its rationale. This trend tells you otherwise in court. something about the worrying and accelerated 2. Extra-constitutional occurrences or advance towards authoritarianism in Fiji. One subversions if not intended to be temporary should not be surprised at the continued will not displace the Constitution for some erosion of the rule of law in Fiji. It is a direct period of time. Judges should continue to consequence of the extra-constitutional uphold the Constitution meanwhile (Fiji usurpation of authority by the Fiji military and High Court 2000). its leaders. The response of the ousted SDL party Unfortunately, these principles were not to its predicament upon removal has been again applied in the wake of the 2006 coup. inept. The former government has made As a result, the independence of the judiciary serious strategic blunders and now finds itself would appear to have been compromised. on the backfoot. A reading of the judgment Commenting on the situation in Fiji, Sir suggests that during the pre-trial conference Thomas Eichelbaum, a retired and respected stages, the solicitors for the deposed Prime Chief Justice of New Zealand (who was once Minister may have accepted a ‘narrowing’ a member both of Fiji’s Court of Appeal and of the issues, perhaps abandoning some Supreme Court), has said that, Courts and Coups in Fiji: The 2008 High Court Judgement in Qarase v Bainimarama

the judiciary must never be seen to be taking of three judges who decided the case. 10 part in matters that are properly within the According to the Commonwealth’s Latimer realm of politics. I say ‘seen’ deliberately House principles, ‘An independent, impartial, because even the appearance (my emphasis) honest and competent judiciary is integral of straying into forbidden territory is enough to upholding the rule of law, engendering to be damaging to judicial independence. public confidence and dispensing justice.” We all know this, yet Fiji provides a stark (Commonwealth Principles on the Three example of how easy it is for judges to Branches of Government, 2004, p 10) . infringe, even experienced judges, in the According to the European Court of Human case of Fiji. The judiciary has to be heedful Rights, the appropriate method for establishing not only of external pressures but equally the ‘independence’ of the judiciary is with of the risk that its own conduct may be regard ‘to the manner of appointment of detrimental to judicial independence. its members and their terms of office, the existence of safeguards against external When a judge of the standing of Sir pressures and the question of whether it Thomas Eichelbaum expresses sentiments presents an appearance of “impartiality”’ of this kind, they are difficult to dismiss as (Incal v Turkey, 2000). those from someone with an axe to grind What then were the circumstances of or as the ravings of a disgruntled politician Justice Gates’ appointment as acting Chief with an agenda. It is well known that severe Justice? Two senior army officers facilitated difficulties arose within the Fiji judiciary due the removal of Justice Fatiaki from the to the distinct camps that arose in the chambers of the Chief Justice on 3rd January wake of George Speight’s coup in 2000. 2007. Upon his removal, Justice Shameem Although that coup ultimately failed, within then arrogated to herself the position of days the judges of the Fiji High Court had chairmanship of the Judicial Services divided into two camps. The ‘pragmatists’ Commission, which in turn recommended to were led by the then Chief Justice Sir Timoci the President that Justice Gates be appointed Tuivaga and included also Justices Michael to act as Chief Justice. The other members of Scott and (who became Chief the Judicial Services Commission were the Justice himself upon Sir Timoci’s retirement). chairman of the Public Service Commission, On the other side, the ‘constitutionalists’ himself also a military appointee (after his were headed by Justice and predecessor had been forcibly removed by included Justices and the army), and the President of the Fiji Law John Byrne. The pragmatists stood accused Society, who appeared to distance himself of assisting the military drafting its decrees. from the Commission decision. The Law The constitutionalists claimed that there Society later filed proceedings challenging had been a serious breach of the doctrine the appointment of Gates as the Acting Chief of the separation of powers and that the Justice.. pragmatists had betrayed their judicial oaths. It is deeply ironic that now these roles have The Gates et al decision has been deeply been thoroughly inverted, with the former damaging for Fiji, a fledgling democracy ‘constitutionalists’ seeking to legitimize the seeking to re-establish respect for the rule post-coup interim government, and the of law in the wake of Rabuka’s 1987 coup former pragmatists standing up for the rule and the George Speight coup of May 2000. of law. The celebrated lawyer Geoffrey It also sets a dangerous precedent for other Robertson, who appeared as counsel for Commonwealth countries with an experience Chandrika Prasad in the case that ruled that of coups. It has given a new lease of life to government that emerged after Fiji’s 2000 the myth of constitutional government in Fiji, coup to be illegal, has recently described the despite all the flagrant constitutional breaches health of Fiji’s judiciary as ‘terminal’. that have occurred since 5 December 2006. That the survival of this myth now has the The appointment of Acting Chief Justice blessing of the judiciary must have been Anthony Gates was only made possible cause for celebration at the military barracks. by the removal of Chief Justice Fatiaki However, it is a “bitter pill” for advocates of by the military headed by Commodore the rule of law and democratic government. Bainimarama, the defendant in the Qarase v Bainimarama decision. Yet Gates ACJ himself saw fit to preside over the panel Courts and Coups in Fiji: The 2008 High Court Judgement in Qarase v Bainimarama

AUTHOR NOTES Judicial legitimisation Graham Leung is a managing partner of of a coup – prerogative 11 Howards Lawyers in Suva and was formerly president of the and chairman powers and the of the Electoral Commission. He served as ‘purposive’ approach Judge Advocate in the Fiji Military’s court to constitutional martial of those soldiers responsible for a mutiny in May 2000. Graham was born interpretation in , on the island of Ovalau and has previously worked in the Office of the Anthony J. Regan Solicitor General, as Deputy Ambassador to the United Nations and at the Pacific Islands The October 2008 Fiji High Court decision Forum Secretariat. in Qarase v Bainimarama1 found that the President of the Republic of Fiji Islands has REFERENCES extensive powers neither previously known Ambard v Attorney-General of Trinidad & nor stated in the Islands Tobago, [1936] A.C. 322. (the Constitution). In doing so the Court effectively ratified and legitimized the military Attorney General v Butterworth [1963] 1. coup of December 2006. Q.B. 696. The case involved a challenge by the Commonwealth Principles on the deposed Prime Minister against the validity of Three Branches of Government, the acts of the coup leader, the Commander 2004, http://www.thecommonwealth. of the Republic of Fiji Military Forces (RFMF). org/document/34293/35468/37744/ The President’s unstated powers enabled him latimerhouse.htm. to retrospectively ratify both the Commander’s Constitution of the Republic of the Fiji Islands, use of force in ‘stepping into the President’s 1997, Government Printing Department, Fiji. shoes’ (p.13) and the actions taken by the self-appointed President in: Qarase & Others v Bainimarama & Others, Judgment of Gates, Byrne, & Pathik ; Qarase • dismissing a Prime Minister elected in v Bainimarama [2008] FJHC (9 October accordance with the Constitution; 2008). • dismissing the Cabinet and Ministers High Court of Fiji () 2000 – Chandrika appointed in accordance with the Prasad v Republic of Fiji & Attorney. General, Constitution; action No. HBC0217.00L, judgment by • appointing a ‘Caretaker Prime Minister’ Justice Gates. Prasad v Republic of Fiji to advise the self-appointed President [2000], FJHC 121, (15 November 2000). to dissolve the constitutionally elected Parliament; Incal v Turkey, (2000) 29 E.H.R.R. 449. • accepting that advice and dissolving the Meredith, 2008. ‘When a Turkish Delight gives Parliament; Rise to a Judge’s Dilemma’, Commonwealth • then handing back executive power to the Judicial Journal 17, (3). validly appointed President. Regina v Gray [1900] 2 Q.B. 36. The Court also found that upon resuming Schofield, D. 1999. ‘Maintaining Judicial authority, the President validly: Independence in a Small Jurisdiction’, In: Hatchard, J. & Slinn, P. (eds), Parliamentary • appointed the RFMF Commander to be Supremacy and Judicial Independence: ‘Interim Prime Minister’, despite there A Commonwealth Approach. London, being no such post provided for in the Cavendish Publishing Limited. Constitution (nor there being any power in the Constitution for the President to Madzimbamuto v Lardner-Burke [1969] 1 AC follow such an appointment process in 645. relation to the substantive office of Prime Minister); • acting on the advice of the ‘Interim Prime Minister’, appointed Ministers (despite Courts and Coups in Fiji: The 2008 High Court Judgement in Qarase v Bainimarama

their not having the constitutionally powers. The plaintiffs argued that no basis for 12 required qualifications), so that they could such powers could be found in the provisions advise the President ‘in what was to be about the President’s powers concerning a period of direct presidential rule’ (p.22) appointment of the Prime Minister. Almost until fresh elections could be held; entirely on the basis of what the Court saw as • ratified the decision of the ‘Interim Prime the need to ‘give a generous and purposive Minister’ that in the absence of an elected approach to the interpretation of all written Parliament, laws would be made by constitutions’ (page 38), it found that the Promulgation, something for which there plaintiffs were incorrect to rely solely on a is no provision in the Constitution;2 ‘textual analysis of the Constitution’. Rather, if a purposive approach to interpretation • promulgated ‘an unconditional grant of was followed, then there was a basis for immunity [from prosecution] … to the the ‘relevant prerogatives’ to remain. They Commander, the Caretaker Prime Minister were ‘the most fundamental reserve powers …, all officers and members of the RFMF of the Head of State’, and so could not be and the other branches of the disciplined abrogated without clear constitutional intent: services’ (p.22), something done ‘The greater the power the clearer must be ‘irrevocably’, through a Promulgation - ‘an the form and language of the ouster’ (page entrenched provision in the law of Fiji, 39). incapable of repeal or abrogation’ (p.23) - suggesting the President (acting on the If such remarkable extra-constitutional advice of the Interim Prime Minister) had powers were not excluded, then amongst the unilaterally amended the Constitution, the main key issues were, first, determining the amendment being incapable of being circumstances in which the President might reviewed, even by later decision of be authorised to exercise those powers, and, Parliament. seond, the extent to which such exercise might be questioned or reviewed by the A Basis for the President’s Actions courts. Unfortunately, other than some very Outside the Constitution – Prerogative broad and general statements, the decision Powers, ‘Purposive’ Interpretation, and says remarkably little on the former issue, Judicial Review presumably largely because of the finding on the latter issue, which in essence is that The Court found that these various actions a purported exercise of prerogative power is were authorized because the President not reviewable. had powers beyond those vested by the On the issue of circumstances in which Constitution, namely prerogative powers such powers can be used, the Court does - ‘the residue of discretionary or arbitrary say ‘… on grounds of extremity, gravity, and authority which at any given time is left in the ensuing expediency, extraordinary powers hands of the Crown’ (Dicey 1959: 424). The are allowed to a Head of State to find a way prerogative powers in question were those out of crisis’ (p.41). In its conclusions, the ‘of defence of the realm, of national security, Court found ‘that exceptional circumstances and of securing the peace, protection, and existed’, and that ‘no other course of action safety of the people’ (p.38). The Court’s was reasonably available, and that such discussion of the extent of the authority of action as taken … was reasonably necessary the President in the exercise of these powers in the interests of peace, order and good is far from clear (pp.23-35) but seems to government’ (p.45). These findings might suggest that there is virtually no limit to what suggest that there might normally be threshold might be done. Clearly the Court regarded questions to determine, namely, namely the President as empowered to step outside whether such exceptional circumstances the specific requirements of the Constitution exist, and whether the actions actually taken – indeed, to take actions contrary to those are reasonable. requirements. However, in dealing with the issue of Having found that prerogative powers had reviewability, the Court found that to the extent ‘travelled to the colonies’ (p.33), or ‘travelled that the President acted under a prerogative with the Empire’ (p.37) including to Fiji, the power, the exercise of that power was not key question was whether the Constitution reviewable by a court (pp.34-5). In fact ‘… in had subsequently excluded prerogative the absence of bad faith on the President’s Courts and Coups in Fiji: The 2008 High Court Judgement in Qarase v Bainimarama

part as here, … the court’s inquiry cannot Supreme Court of , Reference re extend to whether one course of action rather Secession of Quebec [1998] 2 S.C.R.217 13 than another might have been more suitable (although, in fact, the term ‘purposive As a remedy, whether more efficacious, wiser approach’ is not used in that decision). In or better founded’ (p.34). More generally, determining complex constitutional questions where the exercise of the prerogative was about whether or not the Canadian province in relation to the subject matter of national of Quebec had rights under the Canadian security, it ‘was not amenable to the judicial Constitution to secede unilaterally from the process’ (p.34) As a result, it would appear Canadian federation, the Court rejected an that a President cannot be held accountable interpretation of the Constitution based on ‘a provided he or she purports to exercise a superficial reading of selected provision’ in prerogative power in relation to matters such favour of ‘a more profound investigation of as national security. Given the elaborate the underlying principles animating the whole provisions of the Constitution intended to of the Constitution’. Four such principles - ensure the accountability of the executive federalism, democracy, constitutionalism and arm of government, this is a remarkable the rule of law, and respect for minorities – situation. were identified and used in analysis of the rights of Quebec. The ‘Purposive Approach’ to By contrast, the Fiji High Court sought to Constitutional Interpretation use the purposive approach to reject what it called a ‘textual analysis’ of the President’s The comments elsewhere in this powers in favour of finding previously publication by George Williams highlight unidentified presidential powers outside the several arguments that clearly indicate deep Constitution, without reference to the aims flaws in the court’s findings about prerogative of the Constitution – of either the sections powers - points that do not need to be concerning relevant presidential powers, or repeated here. Rather, I turn my attention to of the Constitution as a whole. By ignoring the Court’s notion of the ‘purposive approach’ the intention of the constitution-makers, the to constitutional interpretation that is central Court in fact rejected the purposive approach to its key findings about the continued as expounded by a range of judicial authorities existence of prerogative powers despite the elsewhere. existence of a written Constitution which appears intended to limit powers of the Head The Purposive Approach in the Fiji of State. Constitution There is no doubt a strong trend in judicial interpretation of written constitutions to take a The purposive approach as outlined is ‘purposive approach’. As developed and used stated clearly in section 3 of the Constitution, elsewhere, however, that approach involves the terms of which are set out in the rejecting the commonly used ‘literal’ or textual comments by Graham Leung elsewhere in approach to statutory interpretation when this publication. Of particular importance interpreting constitutional provisions. Rather are the directions in section 3 to look to the most courts take the view that a constitution purpose or object of any provision being should be interpreted by reference to the interpreted, and to have regard to both the purposes of the constitution, often in part spirit of the Constitution as a whole and the (at least) determined by reference to the context in which it was drafted. intentions of the makers of the constitution. When using the purposive approach a court In addition, section 7 requires any court will usually interpret a particular provision interpreting the Constitution to consider by reference not only to the purpose of the principles stated in the ‘Compact’ in the provision in question, but also to the section 6 (unless they are irrelevant). Several intention of the scheme of the constitution as aspects of the ‘Compact’ would be relevant a whole. to considering whether the President has powers to authorize the overthrow of an A good example of the use of the elected government, including principles approach by reference to the intention of about the formation of government that the scheme of the constitution as a whole has support of a majority in the House of can be seen in the 1998 decision of the Courts and Coups in Fiji: The 2008 High Court Judgement in Qarase v Bainimarama

Representatives, the equitable sharing of of either the constitution-making process or 14 political power, etc. the contents of the constitutions reducing the risk of constitutional instability and coups. It is surprising that despite its purported In terms of process, constitutions were reliance on the ‘purposive approach’ the largely the product of elite negotiation, often Court made no reference to sections 3, conducted in the metropolis of the colonial 6 and 7. In many other Fiji constitutional 3 power. In terms of content, other than such decisions, those sections are relied upon. In developments as inclusion of enforceable bills this case, consideration of the requirements of rights and some constitutional protection of section 3, in particular – the objects of for the independence of officials carrying the sections being considered, the spirit of out politically sensitive roles (e.g. electoral the Constitution, and the context in which it commission members)4, constitutions tended was drafted – would have taken the court in to be modelled on those of the departing analytical directions very different from those colonial power. As they were largely stable that underpin the judgment. in their places of origin, it was expected there would be similar outcomes in the post- Politics of the Constitution and colonial context. Constitutional Measures Aimed at The wave of constitution-making since Avoiding Coups the late 1980s has seen the adoption of approaches to both constitution-making Issues about the aims, spirit and context process and constitutional content intended of the Constitution must be considered in the to reduce risks of instability and coups. light of the fact that it was made in part with a Constitution-making processes have view to avoiding constitutional instability and increasingly become either highly participatory coups. In the mid-1990s, after experience (as, for example, in the cases of Uganda’s of division and conflict that had given rise to 1995 Constitution, and South Africa’s post two coups in 1987, abrogation of the 1970 apartheid constitutions), or, where they are Constitution, and the making of the unbalanced still the products of elite negotiation, have 1990 Constitution, Fiji’s political leaders been more open and transparent than was agreed to develop a new constitution. The the case with the decolonization constitutions task of developing the proposals was given and have sought to involve minorities. to the Fiji Constitution Review Commission Amongst the key goals of such processes (FCRC), which developed recommendations have been the incorporation of major groups directed towards minimizing sources of into the state and nation, ensuring that the conflict and increasing the likelihood of future structures and mechanisms included in the constitutional stability (Fiji1996). In doing so, constitution are as widely acceptable as the FCRC drew upon constitution-making possible, and increasing the legitimacy of the experience in other countries that had constitution produced by the process. experienced similar constitutional instability. In terms of content, aspects of constitutional Constitutions are of course the products design in divided and ‘post-conflict’ situations of political and economic forces, but are at are often directed towards reduction of conflict the same time intended to place limits on and increasing constitutional stability. They political action, for example by providing the include power-sharing devices designed to framework within which major tensions and reduce sources of division (electoral systems, divisions are managed, and placing limits power-sharing in the national executive, on state action. In countries where political territorial power-sharing etc.). and economic forces are relatively stable, there are seldom pressures to step outside In addition many constitutions incorporate the constitutional framework. But in countries other approaches intended to contribute to with unstable political and economic forces, constitutional stability, two of which require including deep ethnic divisions, constitutional brief comment. One involves imposition of instability has been common, especially in clear limits on the powers of the executive. The some post-colonial states. second involves spreading power amongst many independent authorities, beyond When the first post-independence what have traditionally been seen as the constitutions were being made for such states, three main arms of government (legislature, attention was seldom given to the possibility executive and judiciary) – generally to bodies Courts and Coups in Fiji: The 2008 High Court Judgement in Qarase v Bainimarama

responsible for the integrity of government provisions in part directed to avoiding coups. institutions and processes, including human In these circumstances, the notion that there 15 rights commissions, ombudsman bodies, might be a significant set of powers for the auditors general and so on. They are intended President located outside the framework of to act as checks on the executive (and other the Constitution seems most unlikely. main arms of government), thereby helping to keep government as a whole accountable, Spirit of the Constitution: minimizing the dangers of abuse, or In addition to representing an agreement concentration of, power in institutions under between once divided groups, the Constitution the control or influence of one or another seeks to reduce sources of conflict (e.g. group. It is an approach that goes far beyond through electoral and power-sharing the long-established doctrine of separation of arrangements) and to offer protection and powers, under which the three main arms of the possibility of participation in government government act as checks on one another. to all communities, including minorities. Like Some of these approaches are evident many other ‘democratising’ and ‘post-conflict’ in both the processes used in the making constitutions in post-colonial states, it seeks and the contents of the Fiji Constitution, and to limit executive powers, most notably by should have been taken into account by the clearly delineating the powers of different Court when considering whether it could elements of the executive (including those have been intended by the constitution- of President, Prime Minister, Cabinet and makers that in some circumstances a Ministers), and by human rights provision President could have wide powers outside and strong accountability provisions. The the Constitution, enabling the overriding latter include provision for scrutiny of the of critically constitutional arrangements. executive by the legislature, an Ombudsman Such an intention seems most unlikely in with extensive powers, and a code of conduct a situation where a significant goal of the for leaders. Further highly independent constitution-making process was to recover new constitutional centres of authority are from a situation of constitutional instability. created, including the Ombudsman, Auditor- General, Director of Public Prosecutions, and Electoral and Human Rights Commissions Aims, Spirit, and Context of the Fiji (section 169). Constitution Where a constitution goes to such lengths to delineate and limit the powers of the I turn now to brief consideration of the executive, to spread government authority application to this case of the three aspects amongst numerous centres of power, and to of the requirements of the approach to ensure that the executive is accountable to interpretation of the Constitution embodied in other institutions, it would seem most unlikely section 3 of the Constitution. that the head of the executive could have been intended to have additional sources of Context in which the Constitution was powers enabling concentration of power in drafted: an office effectively made unaccountable. The Constitution was drafted in an If a court were to follow the example of attempt to resolve conflict and to reduce the the Canadian Supreme Court in Reference likelihood of a resumption of constitutional re Secession of Quebec [1998] 2 S.C.R.217, instability and coups. It was made through and identify for Fiji ‘underlying principles a consultative process, involving a mix of animating the whole of the Constitution’, they elite negotiation and public participation, might include: all intended to ensure broad acceptability • a high level of accountability of government, and legitimacy of the ultimate constitution. especially the executive arm; It was intended to represent an agreement between previously divided groups about • spread of power amongst a number of how to share power and work together, an constitutional offices all independent of agreement in large part represented in the the executive; ‘Compact’ in section 6. The resulting long and • protection of all communities, including detailed Constitution was clearly intended minorities; to be a reasonably comprehensive set of Courts and Coups in Fiji: The 2008 High Court Judgement in Qarase v Bainimarama

• reducing sources of conflict between Amongst relevant portions of the Report are 16 communities; some that suggest that the Court should have • a compact between major groups; been cautious in assuming that prerogative powers were intended to be preserved. In • overall, a goal of achieving constitutional the discussion of sources of law that fill gaps stability and avoiding further coups. in a constitution, the FCRC acknowledged Such principles would be quite inconsistent the importance of the common law in guiding with the reasoning in the judgment. courts in constitutional interpretation, but made no suggestion that the common law Purpose or Object Underlying the Specific (which is the source of prerogative powers) Provisions Being Interpreted: could override the constitution (Fiji 1996:28- 9). In its discussion of emergency powers, The main provisions of the Constitution the FCRC recognizes ‘the prerogative’ as relevant to the Court’s analysis were those: one of several common law sources of power • establishing the President’s office that the executive arm of government might (section 85) and stating the President’s call upon in an emergency, but cautions roles as Head of State (section 86) and that ‘… the authority for them is vague, Commander in Chief (section 87); and their scope ill-defined. The exercise of • stating the President’s powers on power under them is not, in general, subject appointment and dismissal of the Prime to safeguards.’ (Fiji 1996:637) The Report Minister (sections 98, 107, 108 and 109); indicates that ‘although the Constitution and should not expressly exclude the possible • requiring that, with limited exceptions, sources of emergency powers under the the President must act on advice (section common law, the powers needed … to 96). deal with emergencies should, in principle, be conferred either by Parliament or the On a proper reading of section 3 of the Constitution’ (Fiji 1996:638). Further, its Constitution, a key question for the Court recommendations on emergency powers should have been whether these provisions envisage the President always acting on themselves contain any indications as advice. to an intention that the President should derive powers from sources outside the Careful analysis of the powers of the Constitution. President reveals that he or she derives no powers from the general provisions Before examining the text of the sections, of sections 86 and 87 (those making the an important starting point when considering President the Head of State and Commander the purpose or object underlying particular of the military, respectively). They are merely provisions can be the key documents descriptive of symbolic roles. Rather, he or generated by the constitution-making process, she derives powers from numerous other such as the Report of the FCRC, or the provisions authorizing or requiring the doing records of debate in the Parliament on the of specific things. Most importantly, as draft Constitution. Some constitutions require provided in section 96(1), in exercising all a court interpreting a constitutional provision those other powers, the President always to make reference to such records in all ‘acts only on the advice of the Cabinet or a cases except where they are found to have no Minister or of some other body or authority relevance, an example being section 24 of the 5 prescribed by the Constitution’. In other Constitution. Although words, the President acts on the advice that is not the case with the Fiji Constitution, of the Cabinet or a Minister unless some there seems no reason why, when seeking to other body or authority is prescribed by the understand the ‘purpose or object underlying Constitution to serve in this advisory role. the provision’ being considered, and having The sole exception concerns circumstances regard to both the spirit of the Constitution as where the Constitution itself permits the a whole and the circumstances in which it was President to ‘act in his or her own judgment’ drafted, that the court would not consider such (section 96(2)). records. In a number of judgments of both the Supreme Court of Fiji Islands and the Court of Some 25 provisions (see Table 1) provide Appeal of the Fiji Islands reference has been a power and specify the authority upon made to such documents.6 whose advice the President is required to Courts and Coups in Fiji: The 2008 High Court Judgement in Qarase v Bainimarama

act in its exercise. A further ten provisions notionally vested with executive authority, in (Table 2) provide powers in respect of which terms of actual powers he or she is clearly 17 the ‘President may act in his or her own intended to be just one authority amongst judgment’. There are also thirteen provisions many, with just the specific powers assigned (Table 3) where a power is vested in the to the office. The President is not intended to President with no indication either that be in some way superior to other authorities advice is required before its use, or that created by the Constitution – yet this would the President’s may act in his or her own be the result of the President being vested judgment. In four of those thirteen provisions with prerogative powers. the Constitution states that the President ‘must’ act (sections 46(1), 108(2), 188(1) and Concluding Comments 188(2)), indicating an absence of discretion. In the other nine instances the absence The judgment in Qarase v Bainimarama of any indication of a specific authority in vests the President with almost unlimited accordance with whose advice the President powers to take over government at his must act brings section 96(1) into operation, discretion, and to then take whatever action meaning that the President can act only he or she believes is needed, with no form on the advice of the Cabinet or a Minister. of review or accountability possible.8 The That was the view taken in 2003 by the Fiji judgment is based on a flawed analysis Court of Appeal in relation to section 109(1) of the Constitution. Amongst other things, in Yabaki v President of the Republic of Fiji it misinterprets the purposive approach to Islands.7 constitutional interpretation, failing to follow the approach to interpretation required by It would seem clear then that except in the sections 3, 6 and 7 of the Constitution, despite few instances listed in the Constitution where many precedents in previous Supreme Court the President can act ‘in his or her own and Court of Appeal judgments that have judgment’, he or she is otherwise required relied upon those sections. The judgment always to act on advice. In a decision of permits the holder of an unelected and the Supreme Court of Papua New Guinea largely ceremonial office, with strictly limited concerning the powers of the Governor- powers, to override the Constitution and to General of that country, who is required concentrate powers either in that office or in always to act on and in accordance with an office of Interim Prime Minister created advice, it was held that the Governor General and occupied by the use of force. It clothes acts as the ‘rubber stamp’ of the Cabinet or such actions in constitutional legitimacy, and other authority in accordance with whose purports to free both the President and all advice he or she must act (Kila Wari and of those involved in the taking of power by Ors v Ramoi and Dibela [1986] PNGLR force from any form of accountability for 112). There is no reason to suppose that the their actions. It is a judgment that permits President of Fiji is any less a ‘rubber stamp’ the manipulation of a pliant Head of State in the situations where he or she is required by a person wishing to take power by the to act on advice. An office of President that in use of force. It is a judgment that provides a most instances is a ‘rubber stamp’ for another dangerous precedent in other states where authority is essentially a ceremonial position, common law prerogatives might be used to with just a few ‘reserve powers’, each of them justify the overriding of the constitution. carefully specified by the Constitution itself (those where the President’s own judgment applies). Where such care has been taken by constitution-makers to enumerate the powers of the President, and to limit severely the circumstances where he or she acts other than on advice, it would seem remarkable that the same constitution-makers would have envisaged the President being vested with any additional powers. The scheme of the Constitution militates against any such interpretation, for although the President is Courts and Coups in Fiji: The 2008 High Court Judgement in Qarase v Bainimarama

Table 1 18 POWERS OF THE PRESIDENT TO ACT ON ADVICE OF AN AUTHORITY PRESCRIBED BY THE CONSTITUTION FOR A PARTICULAR PURPOSE (SECTION 96(1))

Section Power of the President Authority on Whose Advice the President Must Act s.42(4) Appointment of members of Human The Prime Minister after consultation with Rights Commission the Leader of the Opposition and relevant sector standing committee of the House of Representatives s.60(1) Issue of writs for the election of the members The Prime Minister of the House of Representatives s.64(1) Appointment of members of the Senate • In respect of 14, the Bose Levu Vakaturaga • In respect of 9, the Prime Minister • In respect of 8, the Leader of the Opposition • In respect of 1, the Council of s.68(1) Summoning meeting of Parliament The Prime Minister following a general election s.68(2) Summoning meetings of Parliament other The Prime Minister than immediately after a general election s.76(4) Appointment of two members of the One on nomination of the Prime Minister and Constituency Boundaries Commission one on the nomination of the Leader of the other than the chairperson Opposition s.78(8) Appointment of four members of the The Prime Minister following consultation with Electoral Commission other than the the Leader of the Opposition chairperson s.83(5) Appointment of the chairperson and two The relevant sector standing committee of the other members of the Parliamentary House of Representatives Emoluments Commission s.99(1) Appointment and dismissal of Ministers The Prime Minister other than the Prime Minister s.100(4) Where the Attorney-General is for any Attorney-General is a Minister, appointment & s.99(1) reason unable to perform the functions of of an acting Attorney-General is subject to the the office, appointment of another Minister provisions of s.99(1) even though no mention or Member of the Parliament to act as of advice of the Prime Minister is made in Attorney-General s.100(4)) s.103(2) Assignment of responsibilities to The Prime Minister Ministers s.112(2) Appointment of the Commander of the The Minister RFMF s.115(3) Grant of pardons, conditional pardons, The Commission on the Prerogative of Mercy etc. s.123 Referring to the Supreme Court for its The Cabinet opinion a question as to the effect of a provision of the Constitution s.132(1) Appointment of the Chief Justice The Prime Minister

s.132(2) Appointment of judges of the Supreme The Judicial Service Commission following Court, Justices of Appeal, and the puisne consultation with the Minister and the relevant judges of the High Court sector standing committee of the House of Representatives Courts and Coups in Fiji: The 2008 High Court Judgement in Qarase v Bainimarama

19

Table 1 cont. Section Power of the President Authority on Whose Advice the President Must Act s.132(3) Appointment of a judge as acting Chief The Judicial Service Commission following Justice consultation with the Minister s.138(3) Removal of judge from office for In case of misbehaviour, a tribunal established (c) misbehaviour or for inability to perform under s.138(3)(a)(i), and in case of inability to the functions of office perform functions of office, a medical board appointed under s.138(3)(a)(ii) s.143(4) Appointments of chairpersons and Nomination of the Minister after approval by members of the independent service the appropriate sector standing committee of commissions – namely, the Constitutional the House of Representatives Offices Commission, the Public Services Commission, and the Disciplined Services Commission s.144(2) Appointment of acting member of an The Prime Minister following consultation with independent service commission when the Leader of the Opposition substantive member absent from Fiji or unable to perform functions of office s.149(1) Appointment to or removal from offices The Prime Minister & (2) of ambassador or other principal representative of Fiji to another country or an international organization s.172(4) Initiating process for, and exercising The Prime Minister following consultation with & (6) power of, removal from office of certain the Leader of the Opposition constitutional office-holders s.185(3) Assent to Bill for an Act altering particular Certification by the Secretary General to laws Parliament that prescribed procedures for parliamentary assent have been adhered to s.187(1) Proclamation of a state of emergency The Cabinet (subject to the Parliament first making a law conferring such a power on the President) s.188(4) Proclaiming an extension of the term of The Cabinet the House of Representatives if the term would expire during a state of emergency Courts and Coups in Fiji: The 2008 High Court Judgement in Qarase v Bainimarama

Table 2 20 POWERS OF THE PRESIDENT TO ACT IN HIS OR HER OWN JUDGMENT (CONSTITUTION SECTION 96(2))

Section Power of the President Formulation of the Power s.68(3) Summonsing the Parliament to meet The President ‘acting in his or her own when the Parliament is not in session and judgment’ the President has received a request in writing from at least 18 members seeking consideration without delay of a matter of public importance s.76(3) Appointment of chairperson of The President ‘acting in his or her own Constituency Boundaries Commission judgment, following consultation with the Prime Minister and the Leader of the Opposition’ s.78(7) Appointment of the chairperson of the The President ‘acting in his or her own Electoral Commission judgment’ s.82(1), Appointment of the Leader of the The President ‘acts in his or her own judgment’ (2), & (8) Opposition in exercising a power to appoint the member of the House who ‘would, in the opinion of the President’, be acceptable as Leader s.82(3) & Termination of the appointment and The President ‘acts in his or her own (8) replacement of the Leader of the judgment’ Opposition s.82(6) & Determining that an appointment of The President ‘acts in his or her own (8) Leader of the Opposition cannot be made, judgment’ thereby enabling the President to make certain appointments and take certain actions without reference to the Leader of the Opposition s.98 Appointment of the Prime Minister The President ‘acting in his or her own judgment’ s.108(1) In a situation where a Prime Minister (PM) The President ‘acting in his or her own who has lost the confidence of the House judgment’ of Representatives advises a dissolution of the House: • ascertaining whether or not there is an alternative PM – i.e. another person who can get the confidence of the House; and • if an alternative PM exists, ask the defeated PM to resign, or (if the PM refuses to resign) dismiss him or her and appoint the alternative PM); and • if unable to ascertain existence of an alternative PM, grant the dissolution advised by the defeated PM s.109(2) Where the President has dismissed a The President ‘acting in his or her own Prime Minister, appointment of a caretaker judgment’ Prime Minister to advise a dissolution of the Parliament s.115(2) Appointment of two members (other than The President ‘acting in his or her own (b) the chairperson) of the Commission on judgment’ the Prerogative of Mercy Courts and Coups in Fiji: The 2008 High Court Judgement in Qarase v Bainimarama

Table 3 POWERS OF THE PRESIDENT TO ACT WHERE THE CONSTITUTION DOES 21 NOT SPECIFY A BODY OR AUTHORITY IN ACCORDANCE WITH WHOSE ADVICE HE OR SHE MUST ACT

Section Power of the President Limitations, Restrictions etc. Inherent in Formulation of Power S.46(1) Assent to Bills passed by both Houses s.46(2) states that the President ‘must not refuse to assent to a Bill duly presented for his or her assent’ upon decision by both Houses s.92(1) Nomination of a person as Vice-President None stated in circumstances where there is a vacancy in the office of Vice-President s.104 Requesting Prime Minister for information None stated concerning matters relating to the governance of Fiji s.108(2) Where, after a Prime Minister (PM) has The section provides that the President ‘must’ lost the confidence of the House and an take the actions specified alternative PM is appointed who fails to get the confidence of the House, dismissal of the alternative PM, re-appointment of the previous PM and grant of the dissolution originally advised by the previous PM S109(1) Dismissal of a Prime Minister (PM) where None stated. However, this section seems the Government fails to get or loses the intended mainly to restate requirements of confidence of the House and the PM does ss.107 and 108. To the extent that it does not resign or get a dissolution more than that, the Court of Appeal of Fiji has held that the power must be exercised on the advice of the Cabinet or a Minister - see Yabaki v President of the Republic of the Fiji Islands s.138(3) In circumstances where the President None stated (a) considers that the question of removing a judge from office ought to be considered, initiation of the process of removal of a judge, by appointing (in case of alleged misbehaviour) a tribunal, or (in case of alleged inability to perform the functions of office) a medical board s.138(4) Suspension from office of a judge in None stated respect of whom the question of removal from office has been referred to a tribunal or medical board 148(1)(a) Decision on whether or not to agree None stated with the Public Service Commission on appointment of a person to, removal of a person from or the taking of disciplinary action against the holder of an office under the control of the President s.185(3) Assent to Bills altering certain laws (e.g. In addition to the normal requirements of Fijian Affairs Act) s.46(1) as to the assent of both Houses, the President ‘must not assent to a Bill referred to in this section unless it is accompanied by a certificate of the Secretary-General to the Parliament’ certifying that other procedural and voting majority requirements have been met Courts and Coups in Fiji: The 2008 High Court Judgement in Qarase v Bainimarama

Table 3 cont. 22 Section Power of the President Limitations, Restrictions etc. Inherent in Formulation of Power s.187(2) To the extent provided by a law on states None stated of emergency (made under s.187(1), making regulations relating to a state of emergency s.188(1) Summonsing the House of Representatives The President ‘must’ summons the House to to meet upon proclamation of a state of meet emergency s.188(2) The power to summons the House under The President ‘must’ summons the House s.188(1) extends to the period following dissolution of the House and before the next general election is held s.193(3) Power to proclaim a date earlier than None stated 27/07/98 for the date of the commencement of the Constitution

AUTHOR NOTES 4. De Smith (1964:136) described these as Anthony Regan is a Fellow with the SSGM ‘politically neutral zones’. Program. He taught constitutional law at 5. For a discussion of the aims and operation the University of Papua New Guinea from of that section see Regan and Wolfers 1987 to 1996, has published extensively 1986. on constitutional issues in PNG and the wider Pacific, has been a full-time adviser in 6. See, for example, the judgments referred post-conflict constitution-making processes to in footnote 3. in Uganda (1991 to 1994) and Bougainville 7. CJA 3, from http://www.paclii.org/ (2002 to 2004), and has had limited advisory cgi-bin/disp.pl/fj/cases/FJCA/2003/3. roles in constitution-making and/or peace html?query=yabaki (access 20/10/2008) processes in East Timor, Solomon Islands, at page 13. Nagaland (India) and . 8. Other than possible review of legislation made by Promulgation – see footnote 2. ENDNOTES 1. Unreported, Fiji High Court, 9 October 2008. The Court consisted of three References members – Gates ACJ, and Byrne and De Smith, S.A. 1964. The New Commonwealth Pathik JJ. and its Constitutions. London, Stevens. 2. The Court does hold that laws so Dicey, A.V. 1959. Introduction to the Study made will be subject to review by the of the Law of the Constitution, 10th Edition. ‘incoming Parliament’ (p.46) yet to be London, MacMillan. elected, thereby offering the one hope Fiji 1996. The Fiji Islands. Towards a United of some accountability in this exercise. Future. Report of the Fiji Constitution Review However, as the Constitution can be Commission. Parliament of Fiji. Parliamentary amended by Promulgation, it is yet to be Paper No.34 of 1996. established whether the new Parliament will be freely and fairly elected and truly Regan, A.J. and Wolfers, E.P. 1986. ‘Aids representative. to Interpretation of the Constitution: Some Preliminary Thoughts’. Melanesian Law 3. See, for example, the Court of Appeal in Journal, 14: 153-172. Chaudhry v Qarase [2002] FJCA 3; MISC NO.1 2001 (15 February 2002), and the Supreme Court in Qarase v Chaudhry [2003] FJSC 1; CBV0004.2002S (18 July 2003). Courts and Coups in Fiji: The 2008 High Court Judgement in Qarase v Bainimarama

The Context & Interim Civilian Government in this case has Consequences of the adopted a very responsible stance’, making 23 clear that ‘in the event of the 1997 Constitution October 2008 Qarase Vs being upheld by the Courts, it would use its Bainimarama High Court best endeavours to promote a return to Ruling constitutional legality’ (Court of Appeal 2001). This proved a solid commitment. In the wake of that judgment, the President had to be Jon Fraenkel re-elected by the and Fiji returned to the polls. In other parts of the world, regimes that arose in the aftermath of On 9th October, Fiji’s High Court ruled coups have been much more likely to defy that the President’s actions in appointing such decisions from the courts. an interim cabinet in January 2007, and in continuing to rule by decree in the wake of The 2001 Chandrika Prasad case was not Fiji’s December 5th 2006 coup, ‘were valid the last of Fiji’s high profile court judgments and are held to be lawful’. The three-member regarding the constitutionality of the Qarase- High Court panel, led by acting Chief Justice led government. Following that case, interim Anthony Gates, drew the conclusion that Prime Minister Qarase proved able to win ‘exceptional circumstances existed’, because the consequent election, and form a majority ‘the stability of the State was endangered’, government. But this government too was so the President was entitled to use certain found to be unconstitutional, on the grounds ‘prerogative powers’ not provided for in the that it had failed to follow constitutional constitution (Qarase v Bainimarama 2008). provisions requiring all parties with more The decision had, as it was clearly intended than 10% of seats to participate in cabinet to do, the effect of legitimising the post-coup (Court of Appeal 2002, 2003, Supreme Court interim order. 2004). Initially, the government contested the ruling, and when this was upheld, it It is worth considering the context of the sought to conform to the letter but not Qarase v Bainimarama ruling. the spirit of the law by offering the Fiji The High Court’s judgment came as a shock Labour Party powerless token ministries, to many in Fiji. Despite some controversies which were eventually refused. Yet, after a associated with judicial reaction to the 2000 further election in May 2006, which returned coup, people in Fiji had grown accustomed to Qarase’s Soqosoqo Duavata ni Lewenivanua the courts seeming to be largely independent to office, the Prime Minister formed a multi- of political influence, reasonably dependable party cabinet that included leading members and held in high public esteem. Indeed, an of the previously excluded Fiji Labour extraordinary veneration came to exist for the Party, as required by the constitution. The rule of law in Fiji, paradoxically considerably portfolios – including labour, agriculture and greater than that respect which exists for health – were substantial. It was a fraught constitutional democracy. After the failed arrangement, largely because the Fiji Labour George Speight putsch in May 2000, Fiji’s Party leader Mahendra Chaudhry preferred courts ruled the post-coup interim regime led to remain outside cabinet, and the set-up by Laisenia Qarase to be illegal. First in the was ultimately destroyed by the military coup Lautoka High Court, presided over by the of December 5th 2006. Nevertheless, this now acting Chief Justice Anthony Gates, and was the first time since independence that then in the Chandrika Prasad case before political leaders from Fiji’s two major political the Court of Appeal in 2001, judges found parties - the one representing the now 57% the 1997 constitution intact and ordered a ethnic and the other representing speedy return to democratic rule. By contrast, the 37% Indo-Fijians - had attempted to other parts of the world, such as Nigeria cooperate in cabinet. It was a promising if and Pakistan, have considerably greater stillborn experiment. familiarity with court judgments that have In other words, as regards the two major aimed to legitimise post-coup governments. constitutional issues brought before the The Fiji experience was also unusual in courts during 2000-2006, judges in both another way. In the 2001 Chandrika Prasad cases found the Qarase government to be judgment, the Court said ‘to its credit, the illegal. In both cases, that government - Courts and Coups in Fiji: The 2008 High Court Judgement in Qarase v Bainimarama

eventually - accepted the court’s verdict, and There are several other Australian judges, 24 reconstructed itself accordingly. Yet now, who took their commissions from an elected when that government has been illegally government, who are still sitting on the ousted from office by the Fiji Military Forces Supreme Court, but their appointments expire and looks to the courts for protection, far before the end of the year or in early 2009. from finding that usurpation of power and Clearly, the extraordinary delay - from March the subsequent presidential decrees to be to October 2008 – before the announcement unlawful, the courts instead have ruled in of the verdict in Qarase v Bainimarama such a way as to legitimise the post-coup has contributed to the probability that these interim order. The ‘stability of the State’ was remaining judges will be unable to hear any said to have been endangered, justifying the appeal in the Qarase v Bainimarama case, President’s use of extraordinary ‘prerogative should this reach the Supreme Court. Those powers’ not provided for in the constitution. that sit on the benches of Fiji’s courts will, by No consideration was given to the fact then, be almost exclusively judges who have that the source of that instability was the accepted appointments under the interim Commander of the RFMF himself, who as order, or local judges who may, for obvious a result of the exercise of these prerogative reasons, find greater difficulty ruling in such powers was himself made Prime Minister. It a way as to contest the authority of the post- is a deeply flawed judgment; one that is likely coup government. The right course for the to have long-term negative repercussions for deposed government is surely to appeal the respect in which the courts have been to the higher courts, but the likelihood of a held in Fiji. satisfactory outcome – this side of a general election – seems slender. Unfortunately, there can be little expectation that Fiji’s Court of Appeal or Some in Fiji had hoped, understandably Supreme Court will reverse the High Court’s if perhaps naively, that Justice Gates in judgment. Fiji’s judiciary has been thoroughly particular would rule the interim government reshaped since the 2006 coup. First, the Chief illegal and pave a way for the restoration of Justice Daniel Fatiaki was controversially constitutional democracy. That, after all, would ‘suspended’ in January 2007, and Justice have been in accord with his statement, in the Gates appointed as acting chief justice under November 2000 ruling in Chandrika Prasad v circumstances widely interpreted to have the State (Lautoka High Court 2000) that ‘a been illegal (see, for example, Crawford, judge’s first duty is to uphold the Constitution’, 2007). The President of the Court of Appeal, and his comment, in the same case, that ‘it is Gordon Ward, refused to accept renewal not the oath taken or the regime under which of appointment under the new order. His an appointment is made that colour a judge’s house in Pacific Harbour was burnt to the role on legitimacy. A judge is expected to act ground in suspicious circumstances. The at all times impartially, fairly, with integrity, six remaining expatriate judges on Fiji’s and to uphold all the laws of the land, Court of Appeal resigned in September 2007, independently of the regime existing at the saying that it was apparent that their services time of his or her appointment’. It was for that were not wanted. Former Fiji Supreme Court 2000 decision that Justice Gates became judge, Robert French – now Chief Justice in celebrated by Commonwealth legal scholars Australia – writing in The Australian explained as a founder of the ‘new jurisprudence’ on the reasons for his declining any renewal of coups, and credited with having put forward appointment on the Supreme Court of Fiji, new doctrine potentially with “canonical” stating that to do so would entail an ‘implicit authority that might replace the so-called bargain’ with the interim government and ‘dodgy jurisprudence’ developed in coup- that ‘when faced with a challenge to the prone countries like Pakistan and Nigeria lawfulness of the government itself, such (Hatchard & Ogowewo 2003, p23). Alas, a judge could be seen to have a conflict of that courage to stand up to a post-coup interest’ (The Australian, 2 May 2008). High government and pronounce it to be illegal Court judge, Justice Gerard Winter similarly was not to be repeated in the verdict on the decided, as he put it, that ‘I could not renew Qarase v Bainimarama case. my warrant in 2008 if the military regime was Instead, Justice Gates’ and his colleagues still in power as to do so would run contrary made a ruling that ‘prerogative powers’ exist to my original oath of office’ (The Australian that are not found in the 1997 constitution. 15 August 2008). Courts and Coups in Fiji: The 2008 High Court Judgement in Qarase v Bainimarama

These, we are told, date back 1,000 years Shugart, 1997). Since the President is also to the Norman Conquest, to the era before not popularly elected in Fiji, so increasing his 25 the subordination of Kings and Queens or her powers is all the more dangerous. In to parliaments. Supporting case history is other words, the ‘coup to end all coups’ has sought from the British Raj, and wartime now written for itself a charter for all future exigencies under colonial control. It is as if coups. no Commonwealth country, freeing itself from Where does the Qarase v Bainimarama colonial rule, is empowered to write its own judgment leave Fiji? Clearly, those many constitution in such a way as to constrain people in Fiji who have been removed from presidential powers. Such a ruling is all the their positions or suffered economically as more dubious and unbalanced when one a result of that coup cannot expect redress bears in mind that the 1997 constitution - from the courts. The regime’s position, in this whatever its flaws and whatever the manner sense, would appear to be strengthened. of its construction - was essentially a compact Yet we should remember that the post- between the leaders of Fiji’s two largest 2000 pattern of legal redress in Fiji was, communities and sought to limit very precisely internationally, highly unusual. More usually, the scope of presidential powers. Despite what proves more important to bringing claiming to be a ‘purposive’ interpretation military regimes to an end is the corrosive of Fiji’s constitution, there was no serious impact of lack of internal legitimacy and enquiry into the intentions of the framers of absence of international support (Finer 1962). those fundamental laws. Both these factors helped Fiji - eventually – The heroic era of Fiji’s higher courts is back to democracy and indeed towards a clearly over. This was not a judgment, like new, more broadly acceptable, constitution that of the Court of Appeal in March 2001, after 1990. which sought to encourage Fiji to return to constitutional democracy. On the contrary, by endowing the Office of the President AUTHOR NOTES with such far-reaching ‘prerogative powers’, Jon Fraenkel is a research fellow with the it greatly encourages would-be usurpers State, Society and Governance in Melanesia of those ‘ultimate reserve powers’. The program at the Australian National University. present context is important. The visibly He previously worked at the University of ailing incumbent President Ratu Josefa Iloilo, the South Pacific in Fiji for eleven years. He openly acknowledged upon his ‘resumption’ is author of The Manipulation of Custom; of office in early January 2007 that he had, from uprising to intervention in the Solomon as he put it, been ‘unable to perform my Islands (Victoria University Press & Pandanus duties’ during the critical days after the Books, 2004). December 5th coup. It is well known that the Office of the President has, for several years, been controlled by military minders. Moves REFERENCES have for months been underway by the Court of Appeal (2001) Republic of Fiji & interim government to restructure Fiji’s Great Attorney General v Chandrika Prasad, Civil Council of Chiefs, largely because this is the Appeal No. ABU0078 of 2000s, Judgment 1 appointing authority for the President. In other March 2001. words, what has been vastly strengthened Court of Appeal (2002), Chaudhry v Qarase, by this judgment is not really the President President & Attorney-General, Civil Action himself, but rather the Office of the President. No. 282 of 2001, Misc 1/2001, February 15, It lays the way open for the usurpers – under 2002. the fiction of constitutionality – to exercise extraordinary powers should they prove able, Court of Appeal (2003), Qarase, President & officially in addition to unofficially, to capture Attorney-General v Chaudhry, Civil Appeal the presidency. No. CBV 0004 of 2002S, Judgment, July 18, 2003. Furthermore, particularly in deeply divided societies like that in Fiji, having power so Crawford, James (2007), ‘Opinion. Re: heavily concentrated in a single pair of hands Judicial Services Commission of Fiji— is a poor constitutional choice (Lipjhart, Recommendation for Appointment of Acting 1994, Linz 1994, but see Mainwaring & Chief Justice’, 20 February 2007. Courts and Coups in Fiji: The 2008 High Court Judgement in Qarase v Bainimarama

Finer, S. 1962. The Man on Horseback; The Linz, J. 1994. ‘Presidentialism or Parliamentary 26 Role of the Military in Politics. Transaction Democracy: Does it Make a Difference’, In: Publishers, New Brunswick & London, [2002 The Failure of Presidential Democracy, (eds), edition]. J.J. Linz and A. Valenzuela. John Hopkins University Press, Baltimore and London. Hatchard, J. & Ogowewo, T.I. 2003. Tackling the Unconstitutional Overthrow Shugart, M.S. and Mainwaring, S. 1997. of Democracies; Emerging Trends in the ‘Presidentialism and Democracy in Latin Commonwealth. Commonwealth Secretariat, America: rethinking the terms of the London. Debate’, In: Presidentialism & Democracy in Latin America, (eds), S. Mainwaring and High Court of Fiji 2008. Qarase & Others M.S. Shugart. Cambridge, New York & v Bainimarama & Others, Civil Actions Melbourne. HBC60.07S & HBC398.07S, judgment 9th October 2008. Opinion of the Supreme Court in the Matter of Section 123 of the Constitution Amendment Lautoka High Court 2000. Chandrika Prasad Act 1997 and in the Matter of a Reference by v Republic of Fiji & Attorney General, Civil the President for an Opinion in Questions as Jurisdiction action number HBC0217.00L, to the effect of Section 99 of the Constitution, judgment 15 November 2000. Miscellaneous Case No. 1 of 2003, Supreme Lijphart, A. 1994. ‘Presidentialism & Court (2004), Judgment, July 9, 2004. Majoritarian Democracy: Theoretical Observations’, In: The Failure of Presidential Democracy, (eds), J.J. Linz & A. Valenzuela. John Hopkins University Press, Baltimore and London. Courts and Coups in Fiji: The 2008 High Court Judgement in Qarase v Bainimarama

SSGM Discussion Paper Series (2004/1 - 2008/9) 27 2004/1: Phillip Gibbs, Nicole Haley and Abby McLeod, Politicking and Voting in the Highlands: The 2002 Papua New Guinea National Elections 2004/2: David Hegarty, Ron May, Anthony Regan, Sinclair Dinnen, Hank Nelson and Ron Duncan, Rebuilding State and Nation in Solomon Islands: Policy Options for the Regional Assistance Mission 2004/3: Michael Goddard, Women in Papua New Guinea’s Village Courts 2004/4: Sarah Garap, Kup Women for Peace: Women Taking Action to Build Peace and Influence Community Decision-Making 2004/5: Sinclair Dinnen, Lending a Fist? Australia’s New Interventionism in the Southwest Pacific 2004/6: Colin Filer, Horses for Courses: Special Purpose Authorities and Local-Level Governance in Papua New Guinea 2004/7: Robert Muggah, Diagnosing Demand: Assessing the Motivations and Means for Firearms Acquisition in the Solomon Islands and Papua New Guinea 2004/8: Sinclair Dinnen and Edwina Thompson, Gender and Small Arms Violence in Papua New Guinea 2005/1: Nic Maclellan, Conflict and Reconciliation in New Caledonia: Building the Mwâ Kâ 2005/2: Michael Morgan, Cultures of Dominance: Institutional and Cultural Influences on Parliamentary Politics in Melanesia 2005/3: Hank Nelson, Fighting for her Gates and Waterways: Changing Perceptions of New Guinea in Australian Defence 2005/4: Allan Patience, The ECP and Australia’s Middle Power Ambitions 2005/5: Jerry Singirok, The Use of Illegal Guns: Security Implications for Papua New Guinea 2005/6: Jaap Timmer, Decentralisation and Elite Politics in Papua 2005/7: Donovan Storey, Urban Governance in Pacific Island Countries: Advancing an Overdue Agenda 2005/8: Jon Fraenkel, Political Consequences of Pacific Island Electoral Laws 2006/1: Hank Nelson, Governments, States and Labels 2007/1: Peter Larmour, Evaluating International Action Against Corruption in the Pacific Islands 2007/2: Brij V. Lal, ‘This Process of Political Readjustment’: Aftermath of the 2006 Fiji Coup 2007/3: Hank Nelson, The Chinese in Papua New Guinea 2007/4: Paul D’Arcy, China in the Pacific: Some Policy Considerations for Australia and New Zealand 2007/5: Geoffrey White, Indigenous Governance in Melanesia 2008/1: Brij V. Lal, One Hand Clapping: Reflections on the First Anniversary of Fiji’s December 2006 Coup 2008/2: Paulson Panapa and Jon Fraenkel, The Loneliness of the Pro-Government Backbencher and the Precari- ousness of Simple Majority Rule in Tuvalu 2008/3: Kate Higgins, Outside-In: A Volunteer’s Reflections on a Solomon Islands Community Development Program 2008/4: Sarah Kernot & Lai Sakita, The Role of Chiefs in Peacebuilding in Port Vila 2008/5: Debra McDougall, Religious Institutions as Alternative Structures in Post-Conflict Solomon Islands? Cases from Western Province 2008/6: Abby McLeod, Leadership Models in the Pacific 2008/7: Nicole Haley, Strengthening Civil Society to Build Demand for Better Governance in the Pacific. Litera- ture Review and Analysis of Good Practice and Lessons Learned 2008/8: Richard Eves, Cultivating Christian Civil Society: Fundamentalist Christianity, Politics and Governance in Papua New Guinea 2008/9: Into A. Goudsmit, Nation Building in Papua New Guinea: A Local Alternative

For details of the SSGM Discussion Papers published from 1996, see the SSGM website: http://rspas.anu.edu.au/melanesia/discussion.php

ISSN: 1328-7854 Research School of Pacific and Asian Studies

State, Society and Governance in Melanesia (SSGM) is a program of the Research School of Pacific and Asian Studies, ANU College of Asia and the Pacific, The Australian National University. SSGM’s key objectives are to encourage scholarship on governance and state-society relations; generate dialogue throughout Melanesia and the Pacific Islands on these issues; and assist in bridging policy and research. The Program’s research and outreach focuses on:

* Island Melanesia - Papua New Guinea, Solomon Islands, Vanuatu, New Caledonia and Fiji; * the culturally-related region to the west including Papua/Irian Jaya and Timor; and * the countries of the Pacific Islands region to the north and east.

The contribution of AusAID to this series is acknowledged with appreciation.

State, Society and Governance in Melanesia Research School of Pacific and Asian Studies ANU College of Asia and the Pacific Australian National University

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