View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by The Australian National University 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 FIJI: 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 Suva, 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, Australia’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 Head of State 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 High Court of Fiji 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 President of Fiji 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 Parliament of Fiji, 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 Laisenia Qarase over matters such as: In the earlier decision of Mitchell v Director of Public Prosecutions (1986 p.