Last Thursday the US Supreme Court handed down a divided (5-4) historical ruling concerning terrorist detainees at Guantanamo Bay, that the detainees ‘have the constitutional privilege of habeas corpus’, but more importantly ‘the laws of the Constitution are designed to survive, and remain in force, in extraordinary times’, dealing a major blow to the Bush Administration’s questionable tough stance on terrorism.
Fiji’s constitutional history is very short in comparison to the US. After the Rabuka coup in 1987, Rabuka abrogated the 1970 Constitution, declared Fiji a Republic and introduced the 1990 Constitution. The Reeves Commission reviewed the 1990 Constitution, resulting in the Constitution Amended Act 1997, which remains the supreme and extant law in Fiji tody.
Bainimarama after assuming Executive Authority from the late Tui Nayau Ratu Mara during the Speight coup in 2000 sought to revoke the 1997 Constitution, but was rebuffed by then Justice Gates in Chandrika Prasad as ‘not within the doctrine of necessity and such revocation was unconstitutional and with no effect. The Constitution is the supreme and extant law of Fiji today.’
President Iloilo and the interim government have maintained since the removal of the Qarase Government in December 2006, that the 1997 Constitution remains the supreme and extant law in Fiji and all reforms will be in compliance of the same.
Its has been over 3 months since Qarase’s Constitutional case was heard before Acting Chief Justice Gates and Justices Pathick and Byrnes and judgement is still on Notice. This case is more important than previous Constitutional cases and the courts composition of 3 Justices instead of a single Judge bears testimony of how seriously the judiciary viewed Qarase’s case.
The Court in previous coups has attracted severe criticism both from within and without. Now it is provided with an opportunity to show to the world its tenacity to be independent and will to uphold its sacred judicial duty.
On this occasion, its decision will also be closely scrutinised because of other outstanding issues, one surrounding the legality over the appointment of Acting Chief Justice Gates and the legality over the suspension of Chief Justice Fatiaki.
Fiji’s judiciary in the past have stood up to the plate when required and the latest US Supreme Court ruling should fan the fire in their belly to stand up for justice, the rule of law and not shirk away from its Constitutional duties.
Acting CJ Gates’ himself eloquently summed up the Court’s proper role in a Constitutional case, such as in Chandrika Prasad when His Lordship quoted with emphasis and approval from Makenete, which I respectively submit, it is duty bound to apply to Qarase’s case as well:
“The Courts become the pivot on which the constitutional arrangements of the country turn, for the Bench can and must determine the limits of the authority both of the executive and of the Legislature. The consequence follows that the Bench of Judges is the guardian of the constitution…
Judges appointed to office under a written constitution, which provides certain fundamental laws and restricts the manner in which those laws can be altered, must not allow rights under that constitution to be violated. This is a lasting duty for so long as they hold office, whether the violation be by peaceful nor revolutionary means. If, as in South Africa, the Courts were obliged to stand resolutely in the way of what might be termed a legitimate attempt to override the constitution, a fortiori must a court stand in the way of a blatantly illegal attempt to tear up a constitution. If to do this is to be characterized as counter-revolutionary, surely an acquiescence in illegality must equally be revolutionary. Nothing can encourage instability more than for any revolutionary movement to know that, if it succeeds in snatching power, it will be entitled ipso facto to the complete support of the pre-existing judiciary in their judicial capacity. It may be a vain hope that the judgment of a court will deter a usurper, or have the effect of restoring legality, but for a court to be deterred by fear of failure is merely to acquiesce in illegality. It may be that the court’s mere presence exercises some check on a usurper who prefers to avoid a confrontation with it. (Emphasis added)
I am in full agreement with these views and in particular with the warning that a court ought not to shirk its constitutional duty because it fears that its orders may not be executed by the usurper.”