Williams, George --- "Constitutional law: David vs Goliath in Fiji" [2001] AltLawJl 54; (2001) 26(3) Alternative Law Journal 146

• CONSTITUTIONAL LAW
• David vs Goliath in Fiji

CONSTITUTIONAL LAW

David vs Goliath in Fiji

GEORGE WILLIAMS^[*] discusses the role of the law and judges in restoring democracy in Fiji.

Courts and coup d’etâts don’t mix. Where the power vested in a prime minister and parliament has been seized by force of arms, there is a little that judges might do, except to keep their own heads down. If a usurper is prepared to unlawfully take over the government of a nation, he or she is unlikely to respond to a court decision finding that such power must be returned. However, a recent, unique case in Fiji proved otherwise.

On 19 May 2000, a year into the term of Prime Minister Mahendra Chaudhry of the Peoples Coalition Government, a group of armed men led by George Speight seized the Fiji parliament building and took Chaudhry and other members of parliament hostage. Ten days later, in order to appease Speight and his supporters, the Commander of the Fiji Military issued decrees abrogating the 1997 Fijian Constitution and declaring that executive authority of the Republic of Fiji was vested in him as the head of a new Military Government.

The coup attempt by Speight had been quickly followed by another. However, unlike Speight, the Commander had the military might to enforce his will. The taking of power by the Military was not unlike many other coups around the world. Indeed, the 1987 coups in Fiji had already set such an example.

Shortly thereafter on 4 July 2000, the powers of government were transferred by the Military to an Interim Administration. This Administration began the process of drafting a new Constitution based on the ‘paramountcy’ of Indigenous Fijian interests.

A legal action was lodged in the Fiji High Court on the same day. Chandrika Prasad sought an order that the attempt to abrogate the Constitution was illegal. Prasad, an Indo-Fijian farmer, was displaced when he and his family were forced off their land in the wake of the Speight coup attempt. His home had been robbed and badly damaged, his livestock butchered, and his crops destroyed. He was threatened with death. Rebuffed by the police, he turned to the courts.

Prasad did not bring his action in order to restore Prime Minister Chaudhry. In fact, Prasad admitted in an affidavit that he does ‘not care for politicians’. He stated that he brought the case because he wanted the international community to be aware of the human rights violations occurring in Fiji and because he believed that an affirmation of the rule of law and the 1997 Constitution might enable him to ‘live peacefully in my own home and … be treated with respect’. In his action, Prasad did not seek damages for his physical suffering, but instead sought a declaration that the 1997 Constitution remains in force and that the elected government of Fiji had not been lawfully dismissed.

I was asked to represent Prasad, and joined a team of Fijian lawyers. The action seemed futile. After all, even if it were possible to receive a hearing, and to win the case, what effect could a court decision have on a coup? The case was heard by Justice Gates in August. In November 2000, he decided in Prasad v Republic of Fiji [2001] NZAR 21 that the Constitution was still in force and that parliament must be summoned to resume its democratic functions.

The case took a decisive turn after this decision. Instead of ignoring it, the Interim Administration decided to appeal. It was one thing to abrogate the Constitution, it was another entirely to deny the force of a decision of a respected judge, particularly when it was backed by the international community. Even in the midst of a coup, respect for the rule of law and the judiciary prevailed.

Geoffrey Robertson QC joined the Prasad team for the hearing of the appeal in February 2001. Suva was under a very tight Military presence, including roadblocks and snipers on the court roof. At the conclusion of the hearing, the Administration reaffirmed that it would ‘accept the decision of this Court on whether the 1997 Constitution is still in existence’.

In Republic of Fiji v Prasad (unreported, 1 March 2001), the Court of Appeal unanimously rejected the Administration’s appeal and held that the 1997 Constitution remains in force. The five judges applied the ‘effectiveness’ doctrine in holding the Administration unlawful for two reasons. First, there was a rival government striving for power. Affidavits were filed by Chaudhry and members of his Cabinet claiming that the Peoples Coalition was ‘ready and willing’ to resume office. Two proceedings had also been brought by members of the Peoples Coalition challenging the abrogation of the 1997 Constitution. The Court found: ‘This is evidence that demonstrates that there is a rival government seeking through the Courts to assert its authority to govern’.

Second, the Administration could only be recognised as lawful, and hence as the creator of a new legal regime, if it possessed the support, or acquiescence, of the Fijian people. Although the Fijian people had not expressed their anger and frustration at the coup through violence, they had made their opposition clear in many forms, such as through their churches, women’s groups, an alliance of union and employer organisations and non-violent days of protest. From this, the Court concluded: ‘This evidence suggests that a significant proportion of the people of Fiji believe that the 1997 Constitution embodies and protects the ideals and aspirations of the different ethnic groups in Fiji. The material also indicates a widespread belief that there was no proper justification for its abrogation.’

The role played by the law and judges in the Fiji crisis is unique. It is the first time after a coup that the law may bring about a restoration of democracy under an abrogated constitution. The judicial intervention may act as a circuit- breaker for the apparent cycle of coups in Fiji. It may also encourage non-violent resistance in the courts of other nations.

---

^[*] George Williams is Anthony Mason Professor and Director of the Gilbert and Tobin Centre of Public Law at the University of New South Wales.

© 2001 George Williams

email: [e-mail]