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Journal of South Pacific Law - Fiji Islands Crisis
THE POWERS OF THE PRESIDENT IN FIJI
Questions concerning the nature and scope of the emergency and reserve powers of the President of Fiji under the 1997 Constitution of Fiji have been brought into sharp focus by the Speight-led coup of 19th May 2000 in Fiji. I am proposing here to examine these powers in this paper from a predominantly legal perspective. I am not concerned so much with what some might see as a move to illegitimately usurp power or to operate outside the Constitution itself.
In fact the invocation of the emergency and reserve powers on the part of the then President Ratu Sir Kamisese Mara shortly after the coup was very much an attempt to operate within the realms of legality provided by the established constitutional framework. The seizure by Speight of the almost all of the Cabinet and many other government members brought about a situation which required action on the part of those with authority to act in such a situation. Of course one can say that, bearing in mind the nature of the acts in question, the immediate actors in this situation should have been the police or the military. For one thing, the President was established as the commander in chief of the military and he could surely have called them to action. The police had the warrant to intervene bearing in mind the overtly criminal nature of the actions taken. But neither of them took any immediate or effective action.
The reasons for inaction of this sort will long be debated. But after the coup there occurred various attempts by the President to take control of the situation. It is of course worthy of remark that the President, shortly after proclamation of a state of emergency should have had to engage in long negotiations with the Great Council of Chiefs in order to make sure that he was ensured of support from that body. But whatever that tells us about the political power base in Fiji at the time, the President, with the support of the Council purported then to take further control of the situation and to act as far as possible within and to uphold the 1997 Constitution. The question which is at issue here is whether that particular disposition to surround the relevant actions by the cloak of constitutional legitimacy was ever likely to work. In actual fact it did not work with the President afterwards being encouraged to resign prior to the introduction of military rule. The issue which I am concerned with is whether it was ever possible for the President to have claimed to have acted within the existing constitutional framework in terms of the course of action which he undertook.
The attempt to act within the framework of legality established by the 1998 Constitution was, and clearly is, supported by other governments such as those of Australia, New Zealand and the USA and by other bodies such as the Commonwealth and the United Nations. It is evident from various press statements that each of these takes the view that the Fiji Constitution Amendment Act 1997 enshrines the fundamental principles of democracy (albeit a Western-liberal sense of democracy) in Fiji. It is that which clearly marks out in the global scenario the absorption of Fiji into a network of alliances which these other countries and the Commonwealth represent. The human rights regime which is contained within it achieved a similar placement within the world order promoted by the United Nations and the European Union. The commitment of both the President and of the Great Council of Chiefs (the latter with some apparent reluctance) to the Constitution and the framework of legality which it represents can certainly be understood in this light.
But the President's attempt to uphold this framework and to work within it was hampered from the beginning by limitations imposed on his office by the terms of the Constitution itself. The President's and the Great Council of Chiefs' attempt to locate some legitimate source of constitutional authority for effective action in the crisis was doomed to failure. I will return to these in a moment. Arguably, however, this inadequacy of the Constitution lead to the resignation of the President, the intervention of the Army, the proclamation of military rule and the suspension of the Constitution itself.
The Fiji Constitution of 1998 established a system of responsible and representative government for the country on the Westminster model formulated in the nineteenth century in the United Kingdom. There are numerous provisions in the Constitution itself which entrench this model of government and indeed add to it in areas such as human rights. The Constitution assumes the operation of a liberal-democratic society in Fiji. The human rights provisions in Chapter 4 freely set out the fundamental rights of the individual citizen thereby adopting, with some qualifications, the liberal tenet that the rights of the individual are prior to the State. The Constitution itself is stated in article 2 to be the supreme law of the country and therefore the ultimate source of the legal authority. It is the founding principle of the rule of law and therefore of limited government which is taken as the hallmark of liberal democratic government.
Questions will no doubt be raised about whether the adoption of this particular model was entirely appropriate for Fiji given the nature of its society at the time of its adoption. In some respects, and despite wide consultation undertaken by the framers of the Constitution after the so-called Reeves Report, it will long be argued whether the Constitution was a matter of imposition of an external model with inappropriate and untenable assumptions as to the nature and composition of the society concerned, or whether it can be regarded as the outcome of some internal dynamic or political will of Fiji society. But this is another issue on which I do not propose to dwell. There is no doubt at least that the Constitution is one which is well written and the product of clear and deliberate design.
The general context for interpretation of the powers of the President of Fiji are stated clearly in section 109(1) of the 1997 Constitution of Fiji embodied in the Constitution Amendment Act 1997. This provides as follows:
. ""109(1) The President may not dismiss a Prime Minister unless the Government fails to get or loses the confidence of the House of Representatives and the Prime Minister does not resign or get a dissolution of the Parliament.
(2) If the President dismisses a Prime Minister, the President may, acting in his or her own judgment, appoint a person as a caretaker Prime Minister to advise a dissolution of the Parliament
Clearly enough article 109(2) is to be read subject to article 109(1). Article 109(1), along with article 97 provides the context because they embody, in rather express terms, the most basic principle of responsible government in the sense mentioned into the constitutional structure of Fiji. It is this structure which limits the authority and power of a President as the notional head of the executive government. But the question at issue is what powers the President might have had under the Constitution to take effective action in the crisis situation which the so-called coup produced.
Clearly, there are provisions for the declaration of a state of emergency in the 1997 Constitution of Fiji. Furthermore, Fiji enacted an Emergency Powers Act 1998 pursuant to these provisions. It seems that, pursuant to these express constitutional powers, a State of Emergency was proclaimed by the incumbent President Ratu Sir Kamisese Mara on 20th May 2000.
The emergency powers contained in the 1997 Constitution are in their nature somewhat limited. It seems that the drafters of the Constitution paid little attention to the possibility that an elected government could be paralysed by a direct seizure of power such as that which was attempted by Speight and his group. Given the recent history of coups in Fiji this seems all the more surprising an omission. But it is, of course, easy to make dismissive judgements as to inadequate drafting with the benefit hindsight.
No doubt the drafters were motivated in some respects by the desire to reinforce the notion of responsible government by curtailing the scope for independent assumption of political power by the Head of executive government. That was certainly achieved by it appears to have been driven by the assumption that in any relevant state of crisis there would remain a functional government; an assumption which the present circumstances, and for that matter any moderately successful coup, would negate. Let us look firstly at the current emergency powers under the Constitution. I will then go on to consider whether there are any alternative possibilities in terms of implied emergency powers based perhaps on the notion of necessity.1
In interpreting the provisions it seems clear enough that the President does not have any power to dismiss the Prime Minister of Fiji or to constitute an interim government pursuant to either the constitutional provisions relating to emergency powers or otherwise. Furthermore that cannot be done under the Emergency Powers Act 1998. The final control of the Presidential emergency powers under the Constitution can only be understood in terms of the notion of responsible government protections. By this I mean that the provisions themselves are couched in such a way that it is ultimately the government itself which is conceded final authority with respect to proclamations of a state of emergency in terms of the Constitution.
The main provision which permits the making of a proclamation is section 187. This does not directly confer on the President the power to proclaim a state of emergency. In fact it authorises the parliament to make a law permitting the President acting on the advice of the Cabinet to proclaim a state of emergency. As noted above, the parliament had passed such a law. The first significant factor is, however, that the power to declare a state of emergency is a derived power rather than one directly conferred. The second is that such a power can only be exercised on the advice of the cabinet which, in this case, was seemingly impossible in view of the incarceration of the cabinet or most of them.2
At one stage the President also cited section 108 of the Constitution as supporting his action of dismissing the incumbent Prime Minister and appointing Mr Mameodonu in his place. Again this was an attempt to confer some constitutional legitimacy one what the President was seeking to do in order to obviate the crisis in government. But clearly the wording of this section left no scope at all for the President's action of dismissal of the Prime Minister.
Section 106(1) of the Constitution on the other hand was a stronger contender because it provides for the appointment of acting Ministers in place of any Minister including a Prime Minister. It is in the following terms :
"106.(1) The President may appoint a Minister to act in the office of another Minister (including the Prime Minister) during any period, or during all periods, when the other Minister is absent from duty or from Fiji or is, for any other reason, unable to perform the functions of office."
Thus if it could reasonably be contended that the Prime Minister was in this situation "absent from duty" or "for some other reason, unable to perform the functions of office" then the President could dismiss him, appoint Mr. Mameodonu in his place and allow the latter to prorogue the parliament and deliver full authority of to the President. But again there are some serious problems with the use of this section. Firstly the Prime Minister was not really absent from duty much less from Fiji. He was captured as a hostage in the parliamentary complex. As to "any other reason" the problem is that the use of words such as these should be interpreted ejusdem generis.
But it a salient factor that article 106 appears under the title 'Acting Ministers'. Whilst the title is not part of the constitutional provision itself it can give guidance on the meaning of the section. Taking this into consideration it seems clear enough that the article 106 was not intended to permit the sort of situation which the President was hoping to bring about; namely the appointment of Mr. Mameodonu as Prime Minister enabling him thereby simply prorogue parliament and deliver plenary powers of government into the hands of the President. It was intended as a provision which enabled the President to fill temporary absences in the places of Ministers or a Prime Minister. It could not have been intended as a provision which permits the sacrifice of the legitimate mandate of a constitutionally elected government.
The third type of argument to emerge was that the crisis situation in Fiji whereby the elected cabinet and members of government were prevented from practically exercising the functions of a government, gave rise to a situation of necessity. As a response to the incapacitation of the government it was suggested that there should in effect be some implied or reserve power in the President which arises in a situation of crisis such as this. This reserve or implied power should enable the President to be able to take appropriate action to resolve the situation.
There is possible precedent for this. In Canada in 1923, in the so called Byng-King affair, a constitutionally elected government was dismissed from office by the then Governor-General. More recently in Australia in 1975 the Whitlam Labour government and Prime Minister Whitlam were dismissed from office, and a caretaker Prime Minister appointed pending the holding of elections. Both instances appear to provide at least some superficial basis upon which the President in Fiji might dismiss a Prime Minister in case of crisis. But this is in fact far from clearly. I will deal more extensively with the Australian case.
It seems to have been beyond doubt that the Governor-General could dismiss a Prime Minister and an elected government in Australia in cases of loss of confidence in the lower house or in respect of illegal or unconstitutional conduct. But whilst there was some argument about unconstitutional behaviour on the part of the Whitlam government at the time, particularly from the opposition, this action was taken by the Governor-General ostensibly on the basis that the budget had been blocked by the Senate and there was in a sense a financial crisis in Australian national government.3 The Governor General's action in this regard was never challenged in, or ruled upon by, the High Court. Just why this form of challenge was never taken on behalf of the Whitlam government is not at all clear.
Although the dust on the 1975 constitutional crisis in Australia (and perhaps also with the earlier Canadian occurrence) has never quite settled, one could argue that a financial crisis is nonetheless a crisis. Therefore, so it might be said, this serves as a precedent on which the President of Fiji could rely. There was in Fiji a crisis of government and an inability to govern which required urgent action by the Head of State. Williams has suggested that there should be no such precedent on the basis that the Governor-General's action in 1975 only permits dismissal in a case where a government cannot pass its budget.4 The inability to secure supply is simply one expression of the requirement that a Prime Minister and a government must be able to secure the confidence of the lower house and thus of the principle of responsible government. But this is not necessarily the case if one treats the matter as indicative of a radical inability by a government to govern. If that were the underlying principle then one could perhaps extend the principle to the situation in Fiji.
However, a more telling point is that the position of the Governor-General of Australia or of Canada cannot be equated with that of the President of the Republic of Fiji Islands. Governors-General are representatives of the Queen of England. All are in a sense the symbolic heads of constitutional monarchies. Fiji is not a monarchy. Under the 1997 Constitution it is firmly established as a republic by article 1. Hence, there must be some essential doubt about whether the respective positions could be assimilated in terms of reserve powers.
Along similar lines, Professor Saunders has suggested that the Australian Constitution is silent about issues of reserve powers of the Governor-General. Indeed, it is silent about many aspects of responsible government presumably because the writers of the Constitution largely assumed that the conventions of responsible cabinet government would apply without need for further articulation. Much was therefore left to the so-called conventions of responsible government. But this was hardly the case in respect of the 1997 Constitution of Fiji. That Constitution is rather detailed on specification of the circumstances in which the President might exercise reserve powers and indeed on the question of what those reserve powers are.6 This raises the problem that the unstated conventions of responsible government in Australia, Canada or England would not apply in the face of an extensive statement of the relevant principles in the Constitution itself. Indeed, the position is reinforced by article 96(2) which provides that the situations in which the President has power to exercise his or own judgement are those prescribed in the Constitution.
* Professor Hughes is Head of the School of Law, University of the South Pacific
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