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Journal of South Pacific Law - Fiji Islands Crisis Fiji’s May Events: The Law That Failed
Commentary
Ian Fraser
USP School of Law
Vanuatu9 June 2000
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Introduction: What Went Wrong?
First Theory: No Rule of Law in a Family
Second Theory: No Rule of Law in the Pacific
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Introduction: What Went Wrong?
What went wrong? In a phrase, the rule of law went wrong. The most blatantly criminal acts provoked the most blatantly unconstitutional responses, until George Speight’s assaults and forcible confinements led to Frank Bainimarama’s real coup d’etat and abrogation of the Constitution. The motives manifest in the actions and statements of the several actors in the events were various – preventing bloodshed, deferring to the chiefs, averting international recrimination, maintaining order, adjusting the racial balance of power – but they did not include, on anyone’s part, either the observance or the enforcement of the law. Whatever the ‘rule of law’ should mean, in any context, it must feature what was missing in Fiji.
Is that bad? Perhaps so and, given the alternatives, perhaps not, for Fiji. For Fiji’s legal system, however, it certainly was bad. It amounted to abject failure.
Legality did receive a great deal of attention, to be sure, throughout and on almost everyone’s part. Speight’s very first comments about the Great Council of Chiefs were to dismiss it, since as a creature of the Constitution just abolished by his ‘decrees’ it did not exist anymore. Sitiveni Rabuka’s mediation efforts began on the basis of straying as little as possible from the Constitution. President Ratu Mara, after assuming personal power, detailed to the media how it was actually the new Prime Minister Ratu Tevita Momoedonu he had substituted for the elected Prime Minister Mohendra Chaudry who had dismissed Chaudry’s government, during the several minutes Momoedonu held office. And Commodore Bainimarama, after he assumed personal power, immediately issued his decrees which carefully continued all laws except the Constitution in operation; no-one’s personal-injury suit or divorce proceeding need be troubled by this coup. Only the Chiefs eschewed such niceties. They openly left the legalities of GCC decisions to sessions held after the decisions were taken.
This parade of legal form may be seen as hypocrisy, or as the best attempts possible to minimize the condemnation of outsiders. (The reactions of foreign governments and of NGOs were indeed uniformly keyed to respecting the Constitution.) But my purpose here is to explore explanations, rather than to rephrase those condemnations. Why was any genuine concern for legality so faint? Explanation is possible – and it is not just a sorry mess of criminal opportunism and racist cronyism. It is a great deal more, and it is important, for Fiji and for the Pacific generally.
I will focus on the period leading up to the military takeover, and call this period ‘the May events’. I will discuss three explanatory theories. They are in an ascending order of sophistication, or at least subtlety. Fiji is a small society; indigenous Fiji is a very small society, and perhaps, on the scale of its politics, legal significance is simply lost in the glare of personalities. Thus the first theory: constitutionalism is a function of abstraction, abstraction only psychologically possible among strangers. This would hold for a society of any sort and equipped with any culture.
The next theory, in sharp contrast, is based on culture. Fijian culture, like other Pacific cultures, is imbued with an impulse to avoid confrontation. Confrontation within a group or community certainly occurs, but when it does the visceral reaction is to dampen it, to quieten and dissipate it, not to stamp it out. The rule of law, at least as known in the West, is first of all rule; Western law, by definition, is enforced. (I take a conventional notion of the Western European countries and their extensions by settlement as constituting a cultural unity well-enough defined to warrant a single term, ‘the West’.) Challenges to the rule of law in a Western setting are classified as crime and suppressed, as violently as necessary. Thus the second theory: politics in a Pacific cultural setting just doesn’t know the willingness, and the capacity, to coerce required by this rule-of-law model.
The third theory analyses the term ‘law’ a little more. The law that failed to rule in Fiji is not a generalised Western heritage but a peculiar marriage of Western legal traditions, whose peculiarity is obscured by its familiarity. What is known as ‘the law’ is the common law, culturally and positively founded on the English legal tradition. But the ‘supreme’ law, to which the common law is supposed to be subordinate, is a written constitution – a codification of governmental powers and basic political procedure. That embodies the continental European (‘civilian’) legal tradition; indeed it is on this point that the civilian and common-law traditions differ most markedly. More notably still, that absence of codified ‘law’ is, of course, the one similarity between the common law and Pacific customary law. What failed in Fiji was the civilian side of the marriage. Thus the third theory: Fiji may well be capable of constitutionalism and the rule of law, but not necessarily under the codifying type of constitution Fiji, like the other Pacific countries, has chosen.
A fourth candidate theory should be mentioned. Perhaps what ‘went wrong’ was the whole system, and the events Speight began were simply the popular replacement of that system with another – that is, perhaps this was (or is) a revolution, as Speight claimed it to be.[1] By this I do not mean to invoke the cliche – much invoked by Speight himself – that sedition needs only success to become legitimate. The cliche’s aptness is indeed particularly salient in Fiji, where the ‘rule of law’ at stake in May 2000 was based on a constitution itself based on a successful coup just 13 years before. But whether Speight succeeds in that sense does not, I think, affect the importance of asking ‘what went wrong’. What could matter is whether an analogy should be drawn with the ‘people power’ that brought down the Marcos and Suharto. What went wrong with the rule of law in the Phillippines in [1984] or in Indonesia in 1998 was most obviously the absence of democracy; Filipinos and Indonesians, perhaps, could be content with a form of democracy different from Western models, but at those dates even that did not exist. Fiji in May 2000 was governed democratically; however unpopular Chaudry was, people could not generally have believed that he could only be removed by force. What went wrong in Fiji was something in democracy. Even if Speight did represent indigenous opinion well enough to bear comparison with ‘people power’, this needs explanation.
No theory is the whole explanation. The intended effect of considering them is to nuance analyses of the May events, and, especially, to inflect ambitions for the nurturing of a rule of law elsewhere in the Pacific. Perhaps only Fiji has known the blend of brutal opportunism and casual racism that, nuanced or not, these events did display (perhaps only Fiji and Bougainville, and, now, the Solomon Islands [2]); but if these ‘theories’ have any validity for Fiji they have it for all the South Pacific.
First Theory: No Rule of Law in a Family
A turning point in the events was the military coup. Upon the President's resignation, requested by former Army commander Ratu Epeli Ganilau, a Commodore Bainimarama of the Fijian Navy seized executive power citing the risk to public order posed by the hostage-taking, and announced he would have another politician, Ratu Epeli Nailatikau, made Prime Minister ... or, 'Ratu', Chief, Mara was ceremonially approached by a son-in-law and asked to resign, so that Bainimarama could take over and name another of Mara's sons-in-law as PM, even though that man's wife, Mara's daughter, was among the hostages.
Most incidents, and the events overall, can be described in both these ways: a sequence of acts and statements by office-holders (and would-be coup-makers), or a series of interactions among a group of people familiar with each other as individuals, to whom kinship relationships are known and important. (Ratu Nailatikau never was made PM; Speight swiftly made it clear that his family connection to ex-President Mara was too close.) Within the second view, it does seem pedantic to speak of constraints by the rule of law.
That much is so of any small jurisdiction, particularly a national one. But in Fiji, as (in various ways) in other Pacific jurisdictions, the point is reinforced by the official status of 'customary' authorities and relationships. Traditional ranks and fealties have a role even within the rule-of-law view of politics. (Under the 1997 Fiji Constitution the chiefs, through the Great Council of Chiefs, are expressly empowered, inter alia, to veto legislation dealing with custom-owned land.) Custom and tradition are, of course, recognised sources and even forms of 'law', in the Pacific. But they also amount to personal relationships. Perhaps it is more than pedantic to insist upon the official characterisation of political actors' interactions; perhaps it is misleading. The roles of 'father' and 'mother' are recognised in any legal system, including Western ones characterised by a rule of law, and assigned statutory rights and obligations, but even in the West no-one insists that these actually describe family relations.
A simplistic theory could thus run that in the very personal political worlds of the South Pacific, all actors are themselves before they are their legal roles, and that acting those roles as though they were primary would just be play-acting. Like a father faced with a demand for financial support by his child, a President faced with a demand by a Prime Minister reacts as an individual to another, not a role to a role – or, to the extent he does act in a role, the role is that created by culture and custom. The legal rules are afterthoughts: and then, only compelling to the extent they promise enforcement. Which is to say, they operate not as rules but as threats, and so hardly at all if there be no threat. This is a supportable view of the family situation; is it plausible as a view of Fijian politics?
The first objection would be that Fijian politics is not as intimate as all that – it is, of course, divided ethnically. But this is only to the point. It seems to be precisely among the indigenous Fijian politicians, elite, and possibly general population that respect for the rule of law as such is faint. The second objection would be that there are other jurisdictions just as small in which the rule of law holds much more firmly – and it would summon the third objection, that indigenous Fijians are as respectful of customary rules, and as chary of violating them, as any of those jurisdictions are with regard to their laws.
The third objection is fatal to the theory. Even families do follow rules; that they do not feel great loyalty to legislated law must be explained as a feature of legislated law, not the possibilities of rule-bound behavior within families. If the rule of law is weak in Fiji, or even just in indigenous Fiji, the explanation should be sought in its distinctive features. One distinctive feature is its fit in its cultural context, the focus of the second theory.
Second Theory: No Rule of Law in the Pacific
This approach relies upon two assertions. One is that a characteristic of Pacific cultures is the avoidance of confrontation. The other is that an embrace of confrontation is characteristic of Western culture, and in particular of the Western rule-of-law model of government. Each, I think, is plausible enough on its own, but each does seem to provoke an objection which needs to be addressed.
I do not mean to assert that the Pacific cultural heritage carries less (or more) belligerency than that of anywhere else. Historically, men achieved status as warriors, groups achieved prominence through war, and ‘history’ very largely was a matter of the martial success and failure of groups and individuals. Fiji, if distinctive at all in this regard, was particularly bellicose. Nor is the argument that all this was uprooted by Christianity, or by colonialism. The point, rather, is that this sanctioned belligerency was directed out – young men acting on behalf of the group against other groups. Like anywhere else, including contemporary Europe, Pacific island societies distinguished sharply between violence against outsiders and violence within the group. (The fact that the boundaries of ‘groups’ could change depending upon circumstance does not change this; the distinction was clear enough – for this argument – in a given instance.) Within the group, once a dispute was a matter of custom rather than war, the overriding principle was the dampening of the dispute. And this, I would argue, has not changed.
The set of values, procedures, and rules we term customary law has a core principle: disputes should be arrested and their recurrence prevented. It is misleading to think of customary sanctions as ‘punishments’, or even of customary settlements as ‘compensation’. Neither retribution nor indemnity plays a very important role in determining the outcome of a customary dispute. The point is always to appease the aggrieved and to restore ‘harmony’ – i.e., the absence of violence within the relevant group.
The above amounts to a great contrast with Western law (and indeed Western custom). Retribution and indemnity are the bases of criminal and civil law respectively; it is appeasement and harmony that have little or no recognised roles. Law, in the West, is not the avoidance of violence within a group: law is, precisely and profoundly, the application of violence within a group. [3] Disputes are dealt with by deciding who the parties are, which of them is ‘right’ and which ‘wrong’ (the emphasis depending on whether the issue is characterised as civil or criminal), and issuing orders to compel behavior matching that conclusion. Whether the violence be actual or threatened, there is no law in Western imagination without police, no courts without sheriffs, no rules without penalties.
This contrast is a cliche in studies of Melanesian customary law. The events in Fiji have only made obvious its significance specifically to constitutionalism and the rule of law. The indigenous Fijian authorities uniformly regarded the hostage-taking as a political act, to be engaged politically, with an immediate goal the avoidance of bloodshed and a long-term goal the appeasement of Speight and all those who supported him. That is, all actors took it as given that confrontation should end, and the future should be cleared of the prospect of further confrontation of its sort.
Virtually all foreign observers, notably including Western governments, regarded the hostage-taking as a criminal act, to be engaged as an issue of law enforcement. The goals they espoused were, immediately, the elimination of the ‘situation’, and in the longer term the continuance of the government as though the events had never occurred. That is, the confrontation should be won, and the past – not harmony – should be restored.
The outrage in the events, as seen in the West, was the blurring of the politics/crime distinction. Speight’s acts were properly ‘crime’; they could not be permitted an acknowledged political effect. [4]
From this perspective, legality sets the bounds of legitimate politics; that is, indeed, a way to express the ‘rule of law’. We celebrate and recommend, in the West, freedom of debate and demonstration, but we rely as much upon the police as upon political militants to make this tradition workable. A challenge to the rules of politics must be met, and defeated; anything else is almost unthinkable. It can be thought, but only as a epochal change of rules, an event with its own category – revolution. The rule of law can be replaced, but not ignored.
Perhaps, then, Fiji is like those marginal sites of the Western heritage where official indifference or impotence has left the law in limbo, where to the eye of more centrally-situated Westerners ‘anything goes’, where, more justly, the rules by which people relate to each other bear no more than traces of state law – wartime, frontiers, slums. Perhaps Fijians are not so much violating the rule of law as detached from the law.
Something along these lines may be plausible, but it would be well to examine the other side of the relationship: the particular law that failed.
Third Theory: No Rule of Law in a Document
It is a perennial topic, among academic circles concerned with law in the Pacific: the suitability or otherwise of the common law to this part of the world.[5] It has to be, of course; every local independent constitution ratifies formally the historically inevitable commitment of the legal systems here to the colonial model of England (or New Zealand). What is meant, however, by the term ‘common law’, is almost always not anything distinguishing the common law from other Western-world legal traditions.[6] It is, rather, Western law generally. Adjudication rather than mediation, rule-bound decisions, fixed procedural requirements, an emphasis on consistency and abstraction, a sharp distinction between knowledge and evidence: how appropriate are these features to a law for South Pacific societies? But English-speaking law is significantly different from the ‘civilian’ law of the European continent. What has received far less attention is the suitability of the features of the common law which are distinctive to it, within the general context of Western law.
One of the significant differences is that, in its indigenous form, the common law is the constitutional law. In England the core functioning and values of government are matters of common law, so far as they are legal matters (and the distinction between legal and political is, of course, drawn by common law). The same is true for New Zealand and, for most purposes not to do with federalism, Australia and Canada.[7] How executive authority may legally deal with, say, the abrupt incapacity of the prime minister and cabinet is handled with the same range of concepts, and with the same intellectual or rhetorical techniques (and by the same courts), as whether a landlord may legally take the profit of a lessor’s improvements.
The difference in the civilian tradition is, of course, that the constitution is a written document, embodying not only the supreme law generally but also the concepts and rules for questions about government functions. That is, in this other legal tradition of the West, such issues are considered to have been determined in advance, by some set of drafters, qualified by successful revolution or conquest.
This is only an example of the distinction, valid generally, between the common law and civilian law. Civilian law is legislated, its characteristic form the code, and civilian courts are seen by all involved to be applying the law by interpreting texts. The common law is adjudicated, its only form the decision, and these decisions are seen by all involved to be developing the law by considering evidence, social context, and previous decisions. In a phrase, civilian law is written before it is law where common law is law before it is written.
The absence of a written constitution is thus in the nature of common law. The English-speaking tradition is to decide by looking around, at society, and over one’s shoulder, to one’s predecessors, as opposed to the continental tradition of losing oneself, quite consciously and literally, in a text. England’s renowned lack of a written constitution means nothing more, or less, than its lack of a criminal code. Core legal issues of any field of the common law (including many on which there is major legislation) are not decided by deliberation, and the fixing of appropriate language, in advance. They are decided as they come up, always in some context, by an institution which sees itself as the developer or handmaid of rules, not their creator or fountainhead.
Since the legal powers and curbs of other political institutions are set by judicial decision, such decisions are crucial to them too. This is true of the Western rule of law of either tradition. The decisions matter; but my point here is the effect of the decisions’ nature, as it differs between the two traditions.
In the civilian tradition that is interpretation. Assuming an absence of political bias extreme enough to be corruption, the civilian court presented with a conundrum about the powers and role of another institution of government will produce nothing beyond a reasonable reading of the appropriate constitutional provision. The choice of appropriateness and the standard of reasonableness are unlikely to surprise informed observers. That is the point; the constitution is created by legislators, and so, from the point of view of actors involved in present-day crises, it is already there, already permitting or forbidding their manoeuvres. The judges’ reaction to the crisis should not be different from that of their extra-curial colleagues in the law, since that reaction is essentially an act of reading. More to the point here, the judges’ reaction in itself is not constitutional, in the sense of adding to the constitution. It would be nonsense, to all involved, to say the political crisis or its juridical resolution changed the constitution.
The above paragraph is simply not valid for a common-law jurisdiction. Even in the United States, home of the avatar of documentary constitutions, it has been impossible since the 1930s to assert that the judicial interpretations of their constitutional document are no more than professionally disciplined readings. In England judicial decisions are the stuff of constitutional law, and most can be associated with political crises whose judicial outcome many informed observers would not have predicted. How could they? The judges’ reaction – the ‘legality’ of the political actions involved – is seen by all involved not to be determined. If there are limits they are interpretations of past decisions, an enterprise impossible to perceive as limited the way interpretations of rules are limited, or they are the decisions of juries, which quite designedly are not rationalised. Legality is ex post facto; a novel manoeuvre may well be held to manifest a previously-obscure aspect of the law rather than to violate it.
Doctrine acknowledges this by acknowledging the notion of ‘convention’ in constitutional law, even in the colonial jurisdictions that were compelled, for the sake of federalism, to adopt a written constitution. The point of any convention is that it runs contrary to (the obvious reading of) what is written; conventions take the form of ‘Such-and-such a body or office has such-and-such a power, but really, this may only be exercised under these conditions’. It is in the nature of such a ‘rule’ that it is obscure in the abstract, in the strained sense it can be said to exist at all. It is only when some political actor has done the doubtful thing, and reactions are manifest, that one can say it is or is not permissible. Should an Australian student, say, rely on a passage in a constitutional law text concerning the powers of the Governor-General written in 1974? Who is to say, then, which passages are reliable in the 2000 edition? This is not a question for French students, or those of Germany and Italy and so on.
Nor is it a question, at least in the same way, for students of the constitutional law of Fiji – or Papua New Guinea and Samoa and so on. Like the continental jurisdictions of Europe they have complete constitutions, documents purporting to be supreme in the sense of not derivative. When scholars were asked whether the efforts of the President of Fiji to resolve the May crisis were constitutional, they could answer confidently and positively, by reference to specific provisions which covered the very acts he had done. They knew the only challenge to their answers could be attempts to read those specific passages differently; and clumsy a tool though language is, it is not plausible to read ‘on the advice of Cabinet’ as ‘without involving Cabinet’.[8]
In a constitutional crisis in England, or, still, in Australia, New Zealand, or Canada, such answers would almost certainly have to be tentative, and explicitly premised upon propositions about the local nature of ‘democracy’ which other reasonable experts could flatly deny. In England and other countries retaining the Westminster model in all its muddling glory, nothing is certain until it has been tried – tried in practice if not tried in court. It is still, barely, respectable to argue that the Australian Governor-General was legally ‘wrong’ in 1975; it seems to be near consensus that his act was valid only in its circumstances as narrowly described (i.e., in a supply crisis); what exactly the Governor-General’s powers are any more generally is little clearer than ever. As with any point of common-law doctrine, precedents may be distinguished, and the ‘rule’ recast to suit the new circumstance any actual application would constitute.
Fiji, and Papua New Guinea and Samoa and so on, have foregone this forgiving elasticity. Their governments have bound themselves to documents with rules-in-advance, fully in the civilian spirit of the successful revolution, rather than to ideals and conventions in the common-law spirit of conservative adjustment. I would like here to argue that this could be a fundamental mistake. The one element of the common law as a distinctive Western tradition that does suit Pacific conditions is the one thoroughly, but apparently thoughtlessly, eschewed in Pacific constitutions, both the colonial-original ones and the more indigenous 1997 one of Fiji: the concept of law which does not exist in any specific form until it is applied.
A revolution has purposes, sometimes even a purpose. Its natural basis, intellectually, is a manifesto; its natural outcome, legally, is a written constitution. The constitution of the US, and those of France and Germany and Italy and so on, embody the triumphs of fairly coherent ideologies defined by struggle (usually warfare) against similarly coherent rivals. The unwritten ‘constitution’ that complements the common law is nothing like this. England never had that revolution (or military defeat).[9]
Nor was there such a revolution in the South Pacific. There was, rather, a series of conquests or occupations or dominations by British forces, then a series of negotiated or arranged transitions to sovereignty. The common law was indeed imposed, but apart from criminal law largely confined to relationships, institutions, and people imported by the British: it was not imposed in the sense of replacing the existing law. Then it was adopted, under the new constitutions which did purport to replace all existing law – but only, for the law generally, in the sense of continuing both common law and custom, now as ‘recognised’ by the new supreme document.[10] The law that was effectively replaced was what the common law knows as constitutional law: the core functioning and values of government.
The written constitution as a form, therefore, can be seen as inappropriate to the South Pacific. The standardising of political values and goals – usually, it must be repeated, by means including considerable violence – that a successful revolution constitutes among the people also constitutes such a document. No revolution, no programme; any attempt to draft one will not feature the urgency, tempered ideological coherence, and popular will and consensus required before it becomes possible to organise a people’s political culture into phases and explicit rules.
There is more. The law with which Pacific peoples are familiar, the only law indigenous to the Pacific, customary law, on this point resembles common law exactly where common law differs from the civilian tradition. The salient feature of customary law may be the appeasement and avoidance of disputes, but another feature, essential so far, is the absence of commitment to precisely-articulated rules.[11] Customary law, on any given case, exists in a precise form only when and as that case is dealt with. Until then it is principle, goal, and precedent. And that, of course, is the common-law form. The reasons for custom assuming it cannot all be the same: custom is unwritten, it has no precise analogue to any common-law institution, and its substantive principles are fundamentally different from those of the common law. But the similarity of form is striking, especially when both legal traditions are compared to the civilian one, or to the written constitution’s form.
A written consitution detailing the operation of government may thus be inappropriate to the South Pacific both substantively and formally. The latter point should hold for Fiji as well as for anywhere else in the region. But should it be said that the former does not – that the 1987 ‘coups’, together with the research and original thought that went into drafting the 1997 Constitution, constituted Fiji’s ‘revolution’? The 1997 Constitution, after all, was adopted in a way quite unlike most of Fiji’s neighbours’ constitutions. A population with experience of independence as a ‘nation-state’, among whom debate on the subject was lengthy and well-informed and from whom many elected representatives contested the document’s contents, was not a feature in the creation of the constitutions of Papua New Guinea, the Solomon Islands, Vanuatu, Samoa, or the very small states.[12] It was in Fiji, twenty-odd years later.
Or, perhaps, it was not. The voting system, in particular, seems to have been the product of consulting expertise rather than popular will – and this is no detail, given the origin of the May events in indigenous discontent with the particular government they had helped elect.[13] The Constitution was prepared by a Commission, as in the other states when they were approaching independence, and a small one, of three members, at that. It was not the product of any sort of grand convention; its basis was rather a report by a foreign (albeit Polynesian) expert. It was adopted by government, not by plebsicite. The actual drafting was the work of a single person, and a foreigner (Australian) at that. And it was, of course, drafted in English.
The Great Council of Chiefs resembles nothing so much as the House of Lords – that is, the House of Lords before the reform of last year.[14] Its powers lie in authority, rather than rules (or police). Its authority lies partly in tradition, which in turn is only partly historically accurate, and partly in its contemporary performance; its position in the political system is never quite fixed.
To complete the analogy Sitiveni Rabuka would have to be seen as king, a dynasty-founding king succeeded by Ratu Mara, which strains the exercise in too many ways. But the analogy need not be complete for the similarity to be apparent. The shifting expectations and the dependence of actors upon each other’s decisions rather than upon ‘the rules’ (actual or proposed) evoke England more than, say, France – more the 'development' of a constitution than its application.
It is possible to say that the reactions to the hostage-taking in Fiji were events in the formation of a rule of law rather than simply the violation of the rule of law. When the President turned to the traditional authority of the chiefs, and his own appreciation of the country’s needs, he was acting as a Westminster-style executive – but from within a European-style constitution. His powers, in law, are defined by text rather than developed by convention. He violated that text; his acts were no more legitimate, legally, than Speight’s, manifestly more legitimate politically though they were. In the common-law model, political legitimacy imbues legal legitmacy; the glib judgment of the previous sentence (and the clarity of legal experts consulted on the issue) would not be possible.
Perhaps the May events could have been the foundation of a Fijian rule of law. But the rule of law being formed might not be reducible to a document – perhaps not any document, more clearly not this document.
NOTES
___________________________________________________________________________1. The revolution might be the indigenous resurgence Speight claimed; it might be the reconfiguration of state structure in the Fiji Islands: a formal confederation or even multiple sovereignties.
2. (Writing in the first week of June.)
3. For an exploration of this point, and its traditional under-emphasis in jurisprudential writing, see Richard Devlin, Law’s Centaurs: An Inquiry into the Nature and Relations of Law, State, and Violence (1989)27 Osg H LJ 219: "Law is that moment, that specific set of social relations which has as its distinctive feature the capacity for supreme yet legitimate overt violence" (at 289).
4. It took some time for the point to emerge clearly in foreign comment, but by the second weekend Anthony Sinclair, a representative of the Maori group Tino Rangatiratanga, put it on record – "I see [the hostage-taking] as a political action. It’s nothing to do with criminal activities": Maori activists applaud Speight, Oskar Alley, N.Z. Press, 2 June 2000.
5. The part of the world I mean is the south-western Pacific as a cultural area: Melanesia and Polynesia, excluding New Zealand, including Papua New Guinea (but not Irian Jaya/West Papua).
6. As the preceding paranthesis illustrates, the constitutions do enshrine very particular versions of common law, those of either England or New Zealand. But the topic of discussion to which I refer is typically much broader.
7. This is not so, admittedly, of the United States, where modern constitutionalism was inaugurated; in this the Americans were realising the rationalist project that eventually also succeeded in continental Europe, producing the modern civil law. (Ironically enough, Pacific courts seem to follow the English example of minimal reference to American authorities, despite the English rationale being the influence in America of a written, totalising constitution – precisely the characteristic that differentiates, in positivist terms, Pacific jurisdictions from the UK.)
8. The responses referred to came out in the first week of the events. See Australian legal opinions on Fiji coup, Fijilive, 26 May 2000 (www.fijilive.com); they were from George Williams of ANU, Cheryl Saunders of University of Melbourne, and Denis O’Brien. O’Brien drafted the Constitution, as the Constitutional Amendment Act 1997, for the Joint Select Parliamentary Committee of the Fiji Islands. (None evinced any doubts that President Mara’s acts were unconstitutional.) Cheryl Saunders' piece is published in this edition of the JSPL.
9. More precisely (but still crudely), England’s revolutions, in the 17th century, antedated the advent of the written constitution.
10. The constitutions did also include provisions creating rights in citizens and powers in courts, and assigning missions to the executive and legislative branches of government, which could ground a new law replacing the general common law and/or custom. For reasons not pertinent enough to attempt to explore here, the invitation this constituted was not taken up. See Fraser, The Cradle Will Rock: The South Pacific and the Coming Revolution in English Common Law (forthcoming), examining this other perennial discussion topic in the light of the approaching imposition of European Convention on Human Rights law on the common law of the UK.
11. This can be seen as a corollary of the dispute-avoidance feature I call salient.
12. Tonga, as always, is difficult to characterise legally. Its constitutional history is ancient by local (and many other regions’) standards, and like the British-descended jurisdictions outside America its executive authority features a monarch of imprecisely-defined powers. For my purposes this does render it an exception. Samoa too is at least distinctive; its relatively old Constitution (1962) was created by a jurisdiction which was unused to independence, but did have the other features listed in the text above as characterising Fiji in the 1990s.
13. See Jonathan Fraenkel, Fiddling With Democracy Fails (Sydney Morning Herald, 8 June 2000, Fiji Times 9 June 2000) arguing that a significant proportion of voters in 1999 did not realise how the modified preference-alternative electoral system worked (and citing a 19.25% "disproportionality" in the 1999 election, compared to average disproportionalities of, e.g., 9.26% in Australia’s alternative-vote system, 11.38% in India’s first-past-the-post system, and 3.25% in Italy’s proportional-representation system).
14. – and perhaps the GCC before the arousal of the Western chiefs. The significance of Western disaffection with Eastern domination of the Fijian state, and how this relates to reactions to the coup (like the 1987 coup, this one was Easterners displacing a Prime Minister from the West as well as chauvinist indigenous-Fijians displacing a government favorable to Indo-Fijians), is a point crucial to any thorough "theory" of the coup's politics.
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