Symposium: Landmark and Limitations: Republic of Fiji v Prasad

Anna Dziedzic

University of Hong Kong

In 2000, Chandrika Prasad, a farmer who had been forced from his home in the aftermath of a coup, took the Republic of Fiji to court. He obtained a declaration that the Constitution of Fiji had not been displaced by the coup and was still in force. Remarkably, the interim government appealed this decision, submitting the question of its own legality to the Court. When the Court of Appeal also held that the Constitution remained in effect, the interim government, by and large, accepted the Court’s decision.

In a country with a history of coups – the 2000 coup was Fiji’s third of four – the case of Fiji v Prasad is a constitutional judgment of legal and political significance in Fiji and the Commonwealth of Nations. In this post, I suggest that Fiji v Prasad did not mark a revolutionary rupture in the accepted constitutional model. Rather, the case is a landmark in a different sense, a visible mark of the underlying tensions of colonialism, race and multiple sites of power in Fiji’s constitutional landscape.

An attempted civilian coup and a military coup

On 19 May 2000, amid ethno-nationalist public protests following the election of an Indian-Fijian majority government, George Speight led armed supporters into Fiji’s parliament and took the Prime Minister and several Cabinet members hostage.

Clearly, immediate action was required. The 1997 Constitution of Fiji permitted the President to proclaim a state of emergency, but only ‘on the advice of Cabinet’, most of which was held hostage. The President proclaimed a state of emergency, acting without advice. As the hostage crisis and civil disorder continued, Military Commander Frank Bainimarama advised the President that the police could no longer guarantee the security of the nation and that the Constitution – which included no provision for martial law – did not provide a framework to resolve the crisis. On 29 May 2000, the Commander assumed executive power, issuing decrees abrogating the Constitution and establishing an interim military government under his leadership. On 4 July 2000, an interim civilian government was established, also by decree.

The hostages were released on 14 July 2000 and law and order restored. However, the interim civilian government was still the de facto government at the time of the Court of Appeal’s decision in Fiji v Prasad in March 2001.

This was the immediate context for Prasad’s case challenging the legality of the abrogation of the Constitution and other actions taken in the wake of Speight’s attempted coup. However, the wider underlying context also requires examination. As Fijian historian Brij Lal explains, “Fiji never had a genuinely shared sense among its citizens about what kind of constitutional arrangement was appropriate for it”. The British colonial government had instituted racially defined distinctions between Indigenous Fijians, European settlers and indentured labourers from India. Racial categorisations of peoples and institutions continued into Fiji’s independence, with the Constitutions of 1970 and 1990 enshrining political ‘paramountcy’ for Indigenous Fijians. Speight justified his coup on the grounds that amendments to the Constitution in 1997 had weakened the rights of Indigenous Fijians.

The legal resolution

The legal arguments in Fiji v Prasad focused on the doctrine of necessity and the legality of a revolutionary government. The common law doctrine of necessity permits actions that, while not within the terms of the Constitution, are lawful because they are necessary to protect or preserve a vital function of the state in extraordinary circumstances.

In the High Court, Justice Gates held that the doctrine of necessity permitted the President to declare a state of emergency and the military to take actions to resolve the hostage crisis, and maintain law and order. However, once the crisis was resolved, the Constitution “would re-emerge as the supreme law”. On this, the Court of Appeal agreed: the doctrine of necessity authorised temporary extra-constitutional actions but did not permit “permanent changes to a written constitution, let alone its complete abrogation”.

The Court of Appeal also considered whether, despite its illegality, the coup had created a new legal order. In this, the Court of Appeal was guided by precedents from across the Commonwealth of Nations, where courts have given legal recognition to regimes that come to power unlawfully. Adapting the common law of Fiji, the Court of Appeal developed a test for the ‘efficacy’ of a new legal order, based on whether a new regime is in fact established based on the factual criteria of the absence of a rival government and acceptance by the people. The Court of Appeal found, on the evidence, that neither conditions were met and so held that the coup had failed to create a new legal order.

Fiji v Prasad is a landmark in common law jurisprudence on the doctrine of necessity and the recognition of legal orders created by coup. However, while the decisions of the High Court and Court of Appeal are celebrated as examples of courts upholding the constitution and rule of law, they did not have the effect of breaking the cycle of coups in Fiji.

In 2008 and 2009, Fiji’s courts were called upon to consider the legality of another military coup in the case of Qarase v Bainimarama. This coup – of December 2006 – was not done in the wake of an emergency, but was instead justified by the coup leader, Military Commander Frank Bainimarama, on the basis that the government was corrupt and ineffective and discriminated against Indian-Fijians. Justice Gates, sitting with two other judges on the High Court, held that Bainimarama’s actions were a lawful exercise of the ‘national security’ prerogative to protect and defend the nation, even though there was no crisis requiring immediate resolution. The Court of Appeal overturned the High Court’s decision and ruled the coup unlawful. The political response to the Court of Appeal’s decision was severe. The President abrogated the Constitution, revoked the commission of all judges and appointed an interim government, headed by Commodore Bainimarama, which would hold power until 2013.

Fiji v Prasad is therefore indispensable to understanding the constitutional system of Fiji because it marks a range of tensions embedded in Fiji’s constitutionalism.  

The limits of law

Fiji v Prasad stands at the limits of positive constitutional law. Where the constitution does not provide for a lawful solution, the common law can step in and provide one through the doctrine of necessity. Further, the power to declare a new legal order requires the court to step outside of the constitutional order that provides its own authority and exercise a ‘supra-constitutional jurisdiction’.

In Fiji v Prasad, these anomalies could be suppressed because the courts found that the Constitution had not been lawfully abrogated. In the later case of Qarase v Bainimarama, in which the High Court held the coup constitutionally valid, Fijians were confronted with the idea of a legal abrogation of the ‘supreme’ law of the constitution and the legality of a regime that had unconstitutionally seized power. In both cases, the disparities between the words of the Constitution and their legal interpretation, the theory of constitutional supremacy, and the political realities, were in plain sight.

The limits of constitutionalism

Fiji v Prasad marks the limits of constitutional law in another sense. This is the idea that in the pluralistic post-colonial legal system of Fiji, a written constitution may not be understood to exhaustively establish and define all rights and all authority. In 2000, supporters of George Speight and the coup claimed that the 1997 Constitution did not protect the rights of Indigenous Fijians and in fact had been rejected in many parts of Fiji. While the Court of Appeal devoted a large part of its judgment to refuting such claims, the sentiment was nonetheless real.

Anthropologist Martha Kaplan, in ‘Promised Lands: From Colonial Law-giving to Postcolonial Takeovers in Fiji’, argues that the coup leaders understood their actions as justified by the fundamental values of (Indigenous) Fijian society and a sense of the special rights and entitlements of Indigenous Fijians. She notes that the speeches made by the leaders of the interim government following the decision in Fiji v Prasad “made it very clear … that they did not consider the decision by the Court to be the basis for Fiji’s future”. Rather, for these leaders, there were “deeper things” than law, “a sense of right that is God-given … which is more fundamental than elections, courts of law or market contracts.” If this is so, inconsistencies between the written Constitution and these ‘deeper things’ are an ingrained source of fragility in Fiji’s constitutionalism.

This is not to say that the written Constitution is meaningless – far from it. Brij Lal and Jill Cottrell and Yash Ghai have shown how Fijian politics are inextricably tied to the Constitution. The major actors in the 2000 coup and its aftermath framed and justified their actions in constitutional terms. On the one hand, in abrogating the constitution, the coup leaders readily set aside the constitutional order for political gain. On the other hand, they also submitted to the jurisdiction of the courts and sought to regularise their actions with constitutional arguments and new constitutional laws.

This might, at least in part, reflect Fiji’s desire to maintain the confidence of the international community. But it also suggests that the Constitution is an important domestic source and expression of legitimate political power, even if it is not the only one. And while the courts in Fiji v Prasad denied the 2000 coup a constitutional imprimatur, the possibility remained that courts might one day bestow it.

Anna Dziedzic is a Global Academic Fellow at the University of Hong Kong, Faculty of Law.

Suggested citation: Anna Dziedzic, “Landmark and Limitations: Republic of Fiji v Prasad” IACL-IADC Blog (10 December 2019), https://blog-iacl-aidc.org/constitutional-landmark-judgments-in-the-commonwealth/2019/12/10/landmark-and-limitations-republic-of-fiji-v-prasad