A constitutional conundrum in Fiji

There have been three coups in Fiji since independence. There have been two since the latest Constitution was enacted in 1997, following a respectable local constitution-making process. The Constitution was reinstated after the first of these, in a remarkably docile response to a judicial decision that it had not effectively been abrogated. The regime that took office as a result of the second is still in place.

This coup was led by Commodore Bainimarama at the end of 2006. He claimed that the coup was prompted by actions of the incumbent Qarase government that, inter alia, were further deepening the racial divide. Initially, a façade was maintained that the Constitution was still in force. Through a complicated chain of events, the Qarase government was removed and Bainimarama was installed as the effective Prime Minister. Even though the office of President as established by the Constitution is non-executive in character, these steps were said to be taken under ‘direct presidential rule.’ A challenge to the validity of these arrangements was dismissed by the High Court of Fiji in Qarase v Bainimarama.

And here begins the conundrum. Doctrinally, the Qarase decision was dreadful, recognising an expansive view of prerogative power that set an undesirable precedent, not only in Fiji but elsewhere in the common law world. On the other hand, it left the rest of the Constitution, including its other institutions, in place. On appeal, the decision was overturned by the Court of Appeal. The reasoning in this decision is much more doctrinally orthodox. The Court issued declarations that effectively declared the new regime unlawful and encouraged new elections to be held.

The immediate result was that the Constitution was abrogated; judges and most other constitutional office-holders were dismissed; authority was concentrated in the cabinet. Intra-Fijian dialogue on the way forward became less inclusive. And so things remain. Bainimarama promises non-communal elections in 2014. Commonwealth countries scold. China has increased its foreign aid. Within Fiji itself, opinion is divided.

Time will tell whether the Bainimarama regime ultimately will be judged to have been good or bad. The level of repression of civil liberties does not augur well. On the other hand, if the rule of law and democracy is restored in Fiji at a later date under conditions that diminish the racial divide in public life and assist to break the coup cycle, it will be a great achievement.

For constitutional lawyers, these events raise another question, about the role of the courts. Even if, as I would argue, the Court of Appeal was right in law, could it and should it have softened the blow, to make its orders more palatable? This question is further complicated by the fact that all the judges (and most of the counsel) involved in the appeal were Australian; whereas all the High Court judges came from Fiji. If nothing else, the Qarase litigation prompts reflection about the implications (both good and bad) of using foreign judges in constitutional cases, which is common in Pacific states.