Fraenkel – Flawed Judgement

I INTEND to talk mainly about the political and legal context of the Qarase Vs Bainimarama High Court ruling, and its consequences for Fiji, rather than principally about the legal details of the judgement itself. I’m speaking as a political scientist, as a long-time resident in Fiji (until 2007) and as an observer of that country’s contemporary political history.

First, let me say something about the context of this recent judgement.

The High Court judgement in Qarase Vs Bainimarama has come as a shock to many in Fiji.

Despite some controversies associated with judicial reaction to the 2000 coup, people in Fiji had grown accustomed to the courts seeming to be largely independent of political influence, reasonably dependable and held in high public esteem.

Indeed, an extraordinary veneration has come to exist for the rule of law in Fiji, paradoxically to a far greater degree than that respect which exists for constitutional democracy. After the failed George Speight putsch in May 2000, Fiji’s courts ruled the post-coup interim regime led by Laisenia Qarase to be illegal.

First in the Lautoka High Court, presided over by the now acting Chief Justice Anthony Gates, and then in the Chandrika Prasad case before the Court of Appeal in 2001, judges found the 1997 Constitution intact and ordered a speedy return to democratic rule.

By contrast, other parts of the world, such as Nigeria and Pakistan, have considerably greater familiarity with court judgements that have aimed to legitimise post-coup governments.

The Fiji experience has also been unusual in another way. In the March 2001 Court of Appeal judgement, the court said ‘to its credit, the Interim Civilian Government in this case has adopted a very responsible stance’, making clear that ‘in the event of the 1997 Constitution being upheld by the courts, it would use its best endeavours to promote a return to constitutional legality’. This it did. In other parts of the world, regimes that arose in the aftermath of coups have been much more likely to defy such decisions from the courts.

The 2001 Chandrika Prasad case was not the last of Fiji’s high profile court judgements regarding the constitutionality of the Qarase-led government. Following that case, interim Prime Minister Qarase proved able to win the consequent election, and form a majority government. But this too was found to be unconstitutional, on the grounds that it had failed to follow constitutional provisions requiring all parties with more than 10 per cent of seats to participate in Cabinet. Yet after a further election, in May 2006, returned Prime Minister Qarase, he formed a multi-party Cabinet that included leading members of the previously excluded Fiji Labour Party. It was a fraught arrangement, largely because FLP leader Mahendra Chaudhry preferred to remain outside cabinet, and the set-up was ultimately destroyed by the military coup of December 5th 2006. Nevertheless, this was the first time since independence that political leaders from Fiji’s two major political parties – the one representing the now 57 per cent ethnic Fijians and the other representing the 37 per cent Indo-Fijians – had attempted to cooperate together in cabinet. It was a promising if stillborn experiment.

In other words, in the two major constitutional issues brought before the courts during 2000-2006, the courts in both cases found the Qarase government to be illegal. In both cases, the government eventually accepted the court’s verdict, and reconstructed itself accordingly. Yet now, when that government has been illegally ousted from office by the Fiji Military Forces and looks to the courts for protection, far from finding that usurpation of power and the subsequent presidential decrees to be unlawful, the courts instead have ruled in such a way as to legitimise the post-coup interim order.

The High Court has found that ‘exceptional circumstances existed’, because ‘the stability of the State was endangered’, so the President was entitled to use certain ‘prerogative powers’ not provided for in the Constitution.
No consideration is given to the fact that the source of that instability was the Commander of the RFMF himself, who as a result of the exercise of these prerogative powers was himself made Prime Minister.

It is a deeply flawed judgement; one that is likely to have long-term negative repercussions for the respect in which the courts have been held in Fiji.

Unfortunately, there can be little expectation that Fiji’s Court of Appeal or Supreme Court will reverse the High Court’s judgement. Fiji’s judiciary has been thoroughly reshaped since the 2006 coup.

First, the Chief Justice Daniel Fatiaki was controversially ‘suspended’ in January 2007, and Justice Gates appointed as acting chief justice under circumstances widely interpreted to have been illegal. The President of the Court of Appeal, Gordon Ward, refused to accept renewal of appointment under the new order.

His house in Pacific Harbour was burnt to the ground in suspicious circumstances. The six remaining expatriate judges on Fiji’s Court of Appeal resigned in September 2007, saying that it was apparent that their services were not wanted.

Former Fiji Supreme Court judge, Robert French – now Chief Justice in Australia – writing in The Australian in May explained the reasons for his declining any renewal of appointment on the Supreme Court of Fiji, stating that to do so would entail an ‘implicit bargain’ with the interim Government and that ‘when faced with a challenge to the lawfulness of the government itself, such a judge could be seen to have a conflict of interest’ (The Australian, 2 May 2008). High Court judge, Justice Gerard Winter similarly decided, as he put it, that ‘I could not renew my warrant in 2008 if the military regime was still in power as to do so would run contrary to my original oath of office’.

There are several other Australian judges, who took their commissions from an elected government, who are still sitting on the Supreme Court, but their appointments expire before the end of the year or in early 2009. Clearly, the extraordinary delay – from March to October 2008 – before the announcement of the verdict in Qarase Vs Bainimarama has contributed to the probability that these remaining judges will be unable to ever hear the Qarase Vs Bainimarama appeals, should these reach the Supreme Court.

Those that sit on the benches of Fiji’s courts will, by then, be almost exclusively judges who have accepted appointments under the interim order, or local judges who may for obvious reasons find greater difficulty ruling in such a way as to contest the authority of the post-coup government.

The right course for the deposed government is surely to appeal to the higher courts, but the likelihood of a satisfactory outcome – this side of a general election – seems slender.

Some in Fiji had hoped, understandably if perhaps naively, that Justice Gates in particular would rule the interim Government illegal and pave a way for the restoration of constitutional democracy.

That, after all, would have been in accord with his statement, in the November 2000 Lautoka High Court ruling in Chandrika Prasad Vs the State that ‘a judge’s first duty is to uphold the Constitution’, and his comment, in the same case, that ‘it is not the oath taken or the regime under which an appointment is made that colour a judge’s role on legitimacy.

A judge is expected to act at all times impartially, fairly, with integrity, and to uphold all the laws of the land, independently of the regime existing at the time of his or her appointment’. It was for that 2000 decision that Justice Gates became celebrated by Commonwealth legal scholars as a founder of the ‘new jurisprudence’ on coups, and credited with having put forward new legal doctrine potentially with “canonical” authority that might replace the so-called ‘dodgy jurisprudence’ developed in coup-prone countries like Pakistan and Nigeria (Hatchard & Ogowewo. Tackling the Unconstitutional Overthrow of Democracies; Emerging Trends in the Commonwealth, 2003, p23). Alas, that was not to be.

Instead, Justice Gates’ and his colleagues made a ruling that ‘prerogative powers’ exist that are not found in the 1997 Constitution. These, we are told, date back 1,000 years to the Norman Conquest, to the era before the subordination of Kings and Queens to parliaments. Supporting case history is sought from the British Raj, and wartime exigencies under colonial rule. It is as if no Commonwealth country, freeing itself from colonial rule, is empowered to write its own constitution in such a way as to constrain presidential powers. Such a ruling is all the more dubious and unbalanced when one bears in mind that the 1997 Constitution – whatever its flaws – was essentially a compact between the leaders of Fiji’s two largest communities and sought to limit very precisely the scope of presidential powers. Despite claiming to be a ‘purposive’ interpretation of Fiji’s constitution, there was no serious enquiry into the intentions of the framers of that constitution.

The heroic era of Fiji’s higher courts is clearly over. This was not a judgement, like that of the Court of Appeal in March 2001, which sought to encourage Fiji to return to constitutional democracy. On the contrary, by endowing the Office of the President with such far-reaching ‘prerogative powers’, it greatly encourages would-be usurpers of those ‘ultimate reserve powers’.

The present context is important. The visibly ailing incumbent President Ratu Josefa Iloilo, openly acknowledged upon his ‘resumption’ of office in early January 2007 that he had, as he put it, been ‘unable to perform my duties’ during the critical days after the December 5th coup. It is well known that the Office of the President has, for several years, been controlled by military minders. Moves have for months been underway by the interim Government to restructure Fiji’s Great Council of Chiefs, largely because this is the appointing authority for the President. In other words, what has been vastly strengthened by this judgement is not really the President himself, but rather the Office of the President. It lays the way open for the usurpers – under the fiction of constitutionality – to exercise extraordinary powers should they prove able, officially in addition to unofficially, to capture the presidency.

Furthermore, it is well known that – particularly in deeply divided societies like that in Fiji – having power so heavily concentrated in a single pair of hands is a poor constitutional choice. Since the President is also not popularly elected in Fiji, so increasing his or her powers is all the more dangerous. In other words, the ‘coup to end all coups’ has now written for itself a charter for all future coups.

Where does the Qarase Vs Bainimarama judgement leave Fiji? Clearly, those many people of Fiji who have been removed from their positions or suffered economically as a result of that coup cannot expect redress from the courts.

The regime’s position, in this sense, would appear to be strengthened. Yet we should remember that the post-2000 pattern of legal redress in Fiji was, internationally, highly unusual. Usually, what is more important to bringing military regimes to an end is the corrosive impact of lack of internal legitimacy and absence of international support (Finer, The Man on Horseback; The Role of the Military in Politics, 1962). Both these factors helped Fiji – eventually – back to democracy and indeed towards a new, more broadly acceptable, constitution after 1990.

Fiji in October 2008 has reached a hiatus. The regime’s anti-corruption initiatives, its attempted restructuring of the Great Council of Chiefs and its ‘Peoples Charter’ have drawn no groundswell of support. But the interim Government has so far encountered negligible open collective defiance, despite a seething and perhaps now spreading discontent. There is a danger, now that the High Court has ruled the regime lawful and now that elections have been put off indefinitely, that the safety valve comes off and resistance begins to grow. That in turn might encourage a military clampdown or possibly, connected to this, schisms within the RFMF. To avoid this type of outcome, both sides surely have an interest in some form of dialogue, preferably under the auspices of the Pacific Islands Forum, possibly aided by the United Nations and Commonwealth.

However – in the face of a still apparently belligerent military leadership – those favouring a return to genuine constitutionality, rather than the retention of sham constitutionality, surely have an interest in presenting some clear alternative to the interim Government’s initiatives –
(i) perhaps by coming together around a ‘democratic charter’ (to counter those who want amendment to the Constitution by presidential decree),
(ii) perhaps by now making some open concessions to the widely endorsed arguments against controversial, now unnecessary and previously divisive legislation so as to bring together pro-democracy forces, and, most of all,
(iii) By putting forcefully the case for power-sharing as the superior alternative to the utopian goal of military transcendence of the deep divisions that have dogged Fiji since independence.

The views expressed are the author’s and not the Fiji Daily Post.

Vinaka Dr Fraenkel and The Daily Post.  

God bless Fiji