FRAENKEL – Flawed Judgement
23-Oct-2008I 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.
* To be Continued…
The views expressed are the author’s and not the Fiji Daily Post.