In 1990 Yash Ghai published an interesting and learned article sub- titled “The Politics of Legality”. In it he reflected on the legality of the actions of Ratu Sir Penaia Ganilau as the Governor General following the Rabuka coup in1987. In particular, he considered whether the doctrine of necessity could justify Ratu Penaia’s actions.
His observations in 1990 make interesting reading in 2008, particularly when we recall that the Illegal Attorney General was apparently a student of Professor Ghai.
One of the tests that Professor Ghai identified for the doctrine of necessity was that “the acts must as far as possible be consistent with the constitution and the rights of the citizens under it.”
Does Professor Ghai think that President Hollo’s actions meet this test? Judging by what Professor Ghai said in 1990, you would think not. He asked, for example, why Ratu Penaia dissolved Parliament and dismissed the government. He might in his discretion have chosen not to summon Parliament for the time being, but its dissolution could in no sense be regarded as necessary in the circumstances.”
Couldn’t the same thing be said about President lloilo’s actions. Every step he has taken has moved Fiji further from a return to constitutional government.
Another test for the doctrine of necessity identified by Professor Ghai was that “the acts (of the head of state) must not be such that in their intent and effect they consolidate or strengthen the coup; on the contrary they must be directed to the speedy return to constitutional rule.”
Is the appointment of the coup leader as Prime Minister consistent with this test? Quite obviously, it isn’t.
So what has Professor Yash Ghai got to say about the situation in Fiji todays Does he approve of the Gates doctrine of necessity, which could be summed up as: “Mr President do what ever you think necessary and all in your own time”?
Let’s hear from Professor Yash Ghai who had an opinion about the constitutionality of the Governor General’s action in 1987. How do the actions of President lloilo rate against the tests he identified in 1990? What does he think of his former student who has accepted appointment as illegal Attorney General in the illegal regime?