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Court of Appeal of Fiji 6/1/2020 Republic of Fiji Islands v Prasad [2001] FJCA 2; Abu0078.2000s (1 March 2001) Home | Databases | WorldLII | Search | Feedback Court of Appeal of Fiji You are here: PacLII >> Databases >> Court of Appeal of Fiji >> 2001 >> [2001] FJCA 2 Database Search | Name Search | Recent Decisions | Noteup | LawCite | Help Republic of Fiji Islands v Prasad [2001] FJCA 2; Abu0078.2000s (1 March 2001) wpe3.jpg (10966 bytes) Fiji Islands - The Republic of Fiji Islands v Prasad - Pacific Law Materials IN THE COURT OF APPEAL, FIJI ISLANDS ON APPEAL FROM THE HIGH COURT OF FIJI ISLANDS CIVIL APPEAL NO. ABU0078/2000S (High Court Civil Action No. 217/2000) BETWEEN: 1. THE REPUBLIC OF FIJI First Appellant 2. THE ATTORNEY-GENERAL OF FIJI Second Appellant AND: CHANDRIKA PRASAD Respondent Coram: The Rt. Hon. Sir Maurice Casey, Presiding Judge The Hon. Sir lan Barker, Justice of Appeal www.paclii.org/fj/cases/FJCA/2001/2.html 1/31 6/1/2020 Republic of Fiji Islands v Prasad [2001] FJCA 2; Abu0078.2000s (1 March 2001) The Hon. Sir Mari Kapi, Justice of Appeal The Hon. Mr Justice Gordon Ward, Justice of Appeal The Hon. Mr Justice Kenneth Handley, Justice of Appeal Hearing: Monday 19, Tuesday 20, Wednesday 21 and Thursday 22 February 2001, Suva Counsel: Nicholas Blake QC, Anthony Molloy QC, Michael Scott, Savenaca Banuve and Jai Udit for the Appellants Geoffrey Robertson QC, George Williams, Anu Patel and Neel Shivarn for the Respondent Date of judgment: Thursday 1 March, 2001 JUDGMENT OF THE COURT Introduction This appeal is against the judgment of Gates J of 15 November 2000 in which he upheld the continuing validity of Fiji's 1997 Constitution in proceedings brought in the High Court at Lautoka by the respondent Mr Chandrika Prasad. The proceedings challenged the legality of actions, including the purported abrogation of the Constitution, taken by those who assumed control of the State during and after an attempted coup by George Speight on 19 May, 2000. As a Court of Law, our task is limited to determining legal issues. We have no jurisdiction or authority to pass judgment on non-legal questions, particularly those of a political nature. The appeal raised questions as to what had actually happened in Fiji after 19 May 2000 and we have had to decide these questions. We have done this by finding, on the evidence, what actually happened, without considering the political merits or wisdom of what occurred. Our task has been to determine whether the 1997 Constitution remains in place as the Supreme law in Fiji. It has been no part of our task to determine whether it is the best possible Constitution for Fiji. That was the task undertaken in the lead up to the 1997 Constitution, initially by the Reeves Commission, then by the Government, the political parties, the Great Council of Chiefs, and others involved in the political process. The Courts of Fiji played no part in the creation of the 1997 Constitution. Similarly our function in deciding whether the Constitution remains in force is the purely legal one of deciding, as a matter of law, whether its purported abrogation by Commodore Bainimarama (the Commander) on 29 May 2000 achieved that result, or has done so since. Background George Speight and his supporters mounted an armed invasion of the Parliament on 19 May 2000 which resulted in the then Prime Minister, members of his Cabinet and other members of the People's Coalition parties being taken hostage. On the same day the resident proclaimed a State of Emergency and promulgated Emergency Regulations pursuant to the Public Safety Act (Cap 19). The events that followed, particularly in Suva, evidenced a progressive breakdown of law and order. The facts themselves are not in dispute. On 27 May the President, Ratu Sir Kamisese Mara, appointed the Hon. Ratu Tevita Momoedonu, Minister for Labour Industrial Relations and Immigration, to perform www.paclii.org/fj/cases/FJCA/2001/2.html 2/31 6/1/2020 Republic of Fiji Islands v Prasad [2001] FJCA 2; Abu0078.2000s (1 March 2001) the functions of the Prime Minister, with effect from that day, while the Prime Minister was unable to perform them. On the same day, acting on the advice of the Acting Prime Minister and under section 59(2) of the Constitution, the President prorogued (that is adjourned) Parliament for six months. The Acting Prime Minister then resigned that office, reverting to his former ministerial position. Counsel agreed that the President did not dismiss the Prime Minister or his Government and did not assume executive control. The situation continued to deteriorate. On 29 May the Commissioner of Police wrote to the President to advise "that the Fiji Police Force can no longer guarantee the security of the nation". He requested the President to invoke the Public Emergency Regulations and ask the Armed Services to perform all duties and functions of police officers. A meeting took place that evening, on board a naval vessel, between the President and the Commander with some of his officers. In his affidavit of 6 November 2000 sworn in other proceedings, but included by consent in material filed in Court at the start of the hearing, Ratu Sir Kamisese Mara (Ratu Mara) recorded that the Commander had informed him that in his opinion the 1997 Constitution did not provide a framework for resolving the crisis and should be abrogated. Ratu Mara continued, "I indicated that if the Constitution were to be abrogated, I would then not return to the Office of President." The Commander then assumed executive authority as "Commander and Head of the Interim Military Government of Fiji." Ratu Mara did not then resign as President. He refused to accept office as President under a new Constitution, and was content to go out of office with the Constitution if it was abrogated. The purported abrogation of the Constitution later that day, if effective, operated as the dismissal of the President who held office under it. It followed, as Gates J held, that if the Constitution remained in force, Ratu Mara was still the President of Fiji. Later events, which may be referred to at this point, confirm this conclusion. The affidavit of Mr Qarase the Interim Prime Minister of 10 January 2001 annexed a letter from Ratu Mara dated 15 December 2000 which states: "Dear Prime Minister Pension Options This is to confirm that I have retired and have elected my pension entitlements under the existing laws ... Should you require further information or clarification please do let me know. Your sincerely, Ratu Kamisese Mara". Mr Qarase replied on 20 December: "I write to acknowledge receipt of your letter dated 15 December 2000 informing me of your decision to take reduced pension and gratuity as retired President ... I wish to inform you. Sir, that in accordance with section 5(2) of the President's Pension Act, Cabinet, at its special meeting earlier today, has approved the pension entitlements that you have opted for... This would take effect from 15 December ... Following our Cabinet meeting earlier www.paclii.org/fj/cases/FJCA/2001/2.html 3/31 6/1/2020 Republic of Fiji Islands v Prasad [2001] FJCA 2; Abu0078.2000s (1 March 2001) today, our Office is issuing the attached Press Release in relation to your decision on this matter..". The press release stated: "The Interim Prime Minister, Mr Laisenia Qarase, announced today that he has received communication from the Right Hon. Ratu Sir Kamisese Mara confirming his decision to retire as President. His retirement is effective from 29th May 2000. The Prime Minister has acknowledged the communication from the retired President." This correspondence makes it clear that Ratu Mara did not resign until 15 December when he wrote to the Interim Prime Minister. It is now necessary to return to the events of 29 May. Later that day, the Commander promulgated a decree purporting to abrogate the Constitution (Interim Military Government Decree No. 1). Decree No. 3 was also promulgated to establish an Interim Military Government. Clause 5(2) stated that the executive authority of the Republic of Fiji was vested in the Commander as the head of the Military Government. The Commander understood that the establishment of the Military Government by Decree No. 1 involved the imposition of Martial Law on Fiji, but there was no separate proclamation to this effect. However on Sunday 11 June an advertisement by the Military Council appeared in the Fiji press "to explain the Martial Law currently imposed on the people of Fiji". The advertisement stated: "Martial Law may be defined as a temporary rule by Military authorities on a civilian population when the Civil Authority is unable to preserve public safety. The authority to declare and impose Martial La w may be derived from the constitution, in which case the constitution will still be in place when Martial Law is declared. In our case (Fiji) there is no provision in the constitution for the declaration and imposition of Martial Law, hence the Military Authorities, amongst other reasons have found it fit to set aside the constitution in its quest to restore public safety and law and order. Once Martial Law has been declared, the Military Authorities have set up a Military Council and are now ruling by decree. Martial Law gives the Military authorities the powers to restrict the rights of individuals and other arms of government when pursuing its aim of returning the country to normalcy at the earliest possible time. The authorities have decided that no Military Tribunal shall be set up specifically to try civilians during this crisis.
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