REINVENTING FIJI
REINVENTING FIJI was first drafted as an Opinion piece in 2009 - it was cut by censors at the time, but its central thesis remains valid:
In May 2006, Laisenia Qarase led the SDL Party to victory at an election that was called according to provisions in the 1997 Constitution.
What followed over the next eight months was political tension that concluded with a coup, and legal-constitutional maneuvering that remains unresolved to this day.
Fiji is still operating, of course, but we have no peak chiefly forum, no parliament and no elections and little prospect of seeing any of these for the next five years.
Late last week we also had a judiciary and a constitution, but now these are gone as well.
How did we get to this present juncture, and what future lies in store?
To recapitulate, on 5 December 2006, Commodore Frank Bainimarama, the Commander of the RFMF, directed his troops into the streets of Suva as the culmination of eighteen months of anti-government agitation to symbolically take control of the nation, and as a prelude to effectively assuming executive authority of the state.
The Commander, having declared himself ‘President’ (thereby giving himself authority to dismiss PM Qarase), did just that.
In Qarase’s place, Bainimarama appointed Dr Senilagakali as a Caretaker PM to advise himself (Bainimarama as Commander-as-President) to dissolve parliament – which he promptly did the next day.
One month later, 4 January 2007, having played his part in the scheme of things, the Caretaker PM, Dr Senilagakali handed in his resignation to the Commander-as-President, Bainimarama.
The Commander himself then terminated his own commission as President and handed executive authority of the State to President-in-abeyance, Ratu Iloilo.
Ratu Iloilo expressed his support for the Commander and his troops and promised to return the nation to democracy once a new electoral system was ‘in place’.
The next day, President Iloilo appointed Bainimarama as Interim PM and three days later on his (Bainimarama as Interim PM) advice, the process of appointing a new cabinet and Interim ministry was begun.
That day, Chief Justice Fatiaki who had been seen as antipathetic to the aims of the new Interim government, was sent on leave ‘on full pay effective immediately’.
Just over a week later (16/1/07), Justice Anthony Gates (who was no friend to coups as the Chandrika Prasad case showed) replaced Fatiaki as ‘Acting Chief Justice’ (until last December 2008 when Fatiaki finally quit).
On 18 January 2007, President Iloilo sealed the symbolic end of all of the maneuvers that began in December 2006 by promulgating ‘an unconditional grant of immunity’ to the RFMF covering the period 5 December 2006 (when troops took control of Suva and the nation) to 5 January 2007 (i.e. when Bainimarama having stood down as President the day before was sworn in as Interim PM).
Last year (2008), Mr Qarase and others challenged the legality of his government’s removal (in the manner described above) in the High Court.
After a wait of some months, in October last year the High Court led by Chief Justice Gates declared that the President did have the prerogative powers to act as he did – for the good of the nation in times of extreme crisis - and therefore the coup was legal.
By implication, the Interim government and its agencies and instrumentalities were also legal.
Not surprisingly, Qarase and his colleagues challenged the High Court’s declarations. Their case was heard in the Court of Appeal last week.
On Thursday, the Court handed down its verdict on the challenge and, by extension, on what it thought of the High Court’s earlier rulings on the coup.
The Court’s approach focused on the issue of the President’s supposed reserve powers to act in the way he did between particularly between the critical period, 5 to 15 January 2007, when the appointment of the Interim government was effected.
The Court of Appeal began their verdict with a ruling on justiciability in relation to the prerogative powers of the President.
Justiciability relates to the principle of whether something can be legitimately judged by the court or not.
The Court of Appeal found that the ‘existence of the power’ (of prerogative) ‘is able to be reviewed by the Court’, but ‘what is non-justiciable is the manner of the exercise of that power’.
The Court of Appeal agreed that all it could rule on was ‘whether there was a [Presidential] power to appoint the Commander as Prime Minister’, but not who that appointee should be (if the power was found to exist).
Having got that technicality out of the way, the Court of Appeal then moved to explain its approach or method of interpreting the 1997 Constitution.
This it did by ‘taking into account the spirit of the Fiji Constitution as a whole’ and by examining the political-historical context of its evolution.
The judges found that since there ‘had already been the abrogation of one Constitution in 1987’, the court believed ‘it is clear that in the circumstances in which the [1997] Constitution was drafted, the people of Fiji wished, if at all possible, to avoid another such occurrence’.
With this and the Reeves Report in mind, the court found that the provisions of the 1997 Constitution restrict the circumstances in which a President of Fiji can ‘act in his or her own judgement’ and these are spelled out in the Constitution itself – namely in Sections 109 and 96 taken together.
Their reasoning was also underscored by a brief survey of Evatt’s analysis of Dicey’s interpretation of reserve powers in relation to English constitutional struggles 1784-1834. The Court of Appeal took the view that our 1997 Constitution was written with the aim of providing certainty rather than ambiguity, restriction rather than expansion, in regard to monarchical-type prerogative powers as found or claimed in earlier epochs.
This, they assert, is obvious in the provisions of the Constitution outlining that ‘the Fiji Constitution is supreme’; that President ‘acts of advice’; that governments ‘must have the confidence of the House of Representatives’; and that the Constitution ‘prescribes the circumstances in which the President may act in his or her own judgement’ (Sections 2, 96, 97).
The Court of Appeal further argued that ‘it is by no means clear’ that Presidential prerogative powers ‘would continue in existence after the adoption’ of a written republican constitution.
Following the logic of South Africa, the Court noted that over there, ‘there were no powers from the royal [British] prerogative conferred on the President other than those set out in the Constitution’.
Hence, contrary to our High Court findings, the Court of Appeal argued that ‘the provisions of the Fiji Constitution’ outlining the circumstances in which Presidents can here dismiss Prime Ministers, ‘are not to be ignored’, and that the Constitution ‘is quite explicit in providing a narrow basis for the exercise of those powers’.
The Appeal judges also found that interpretations of prerogative that run counter to Section 2 of the Constitution would be problematic – that is, it would be invalidated by being ‘inconsistent’ with the Constitution.
More acutely, the Appeal judges wondered why an extreme national crisis called for the removal of the elected government in the first place – as argued by the state against Qarase.
The Court of Appeal observed that according to the Constitution it is the government that is to lead the nation through a crisis, not be the first victim of it.
This point, they said, ‘exposes the real flaw in the argument’ put by the state against Qarase.
The Court of Appeal also pondered the relevance of the doctrine of necessity as used in defense of the events that produced the Interim government.
The court found ‘its application to justify what is in effect a military coup is undoubtedly dubious’.
The Appeal judges further questioned the state’s defense of what it defined as ‘ultimate reserve power’ or ‘common law necessity’.
The Court said the state was in effect ‘asserting the existence of an unreviewable emergency power outside the written terms of the Constitution’ and although ‘such a power may exist elsewhere in the world’, the Appeal judges argued that ‘the framers of the Fiji Constitution intended’ to ‘exclude the existence of any such power of state necessity’ for President Iloilo to do what he did back in January 2007.
The Appeal judges found that when those events occurred, ‘no power on the part of the President or the Commander of the RFMF on behalf of the President, existed to dismiss the Prime Minister’ - as Qarase had neither resigned nor lost the confidence of the House of Representatives.
They noted that the RFMF could not act independently of the President since ‘you cannot delegate power to do what you cannot do yourself’, and at any rate, the courts were available for the military’s complaint and potential relief.
The final portion of the Court of Appeal’s judgement concerned the matter of relief for the finding in Qarase’s favour.
Qarase indicated to the court early in the proceedings, his willingness, if reappointed PM, to advise the President to issue writs for an election and for him to appoint a Caretaker regime to take the nation to the election.
The court was un-persuaded saying that ‘the dismissal of the Qarase government is simply incapable of being disregarded, reversed or undone’ – despite it being found to be unlawful by the court.
The Appeal judges observed that ‘it is difficult to ignore the fact that, however unlawful, those events have occurred’.
But neither were the Appeal judges persuaded by the state’s view that Qarase’s petition for relief was tantamount to ‘a recipe for chaos’.
Their main thought was emphasized in this way: ‘it would be advisable for the President to overcome the present situation by appointing a distinguished person independent of the parties to this litigation as Caretaker Prime Minister to advise a dissolution of parliament’ and ‘to direct the issuance of writs for an election’ under the provisions of the 1997 Constitution.
The judges noted in passing that they were ‘fortified’ by Presidential, military and Interim government undertakings to ‘uphold the Fiji Constitution’.
Last Good Friday, this judgement which was aimed at deconstructing the coup regime, was itself rendered null and void by Presidential abrogation of the 1997 Constitution. Deconstruction is to be subordinated to reconstruction.
The government that we lost on Thursday reappeared on Saturday.
And sometime in the future, Fiji will receive a new electoral system, a new parliament, a new council of chiefs, a new judiciary, and a new Constitution.
This is nation-building on a massive scale.
What the rest of the world will think of us is another matter, but we have been down this road before – in the years leading to 1970, 1987-97, and 2000.
Regrettably, each time in the past that we have tried to plot and engineer a better future for the nation, the resulting reality has not matched our dreams.
If we set out to yet again to remake the nation in some visionary image, we can only hope we get it right this time.
The scale is grand and the road is steep, but the end result – if successful - will be nothing less than the reinvention of Fiji.
