Legal Opinion Regarding the Decision of the Fiji Court of Appeal
Prepared by Counsel for Mr Chandrika Prasad
The Fiji Court of Appeal rejected the appeal lodged by the Interim Civilian Government (ICG). It upheld the decision of Justice Gates of the High Court of Fiji and declared that the 1997 Constitution is the supreme law of Fiji and remains in force.
On 29 May 2000, Commodore Bainimarama, Commander of the Fiji Military Forces, sought to abrogate the 1997 Constitution. The Court of Appeal held that this action was unlawful and ineffective. This means that the ICG created by the Fiji Military Forces is also unlawful and must relinquish power. The ICG stated before the Court of Appeal that it “will accept the decision of this Court on whether the 1997 Constitution is still in existence”.
The proper lawful course is that the Fiji Parliament elected in May 1999 be recalled as soon as possible. The Parliament would have the task of forming a government and choosing a Prime Minister. If it is unable to form a government, it should be dissolved and fresh elections held. Once a Prime Minister has been chosen, a new President should be appointed.
Recall of Parliament
As a consequence of the Court of Appeal’s decision, the Fiji Parliament has not been dissolved and is still in existence. Parliament may be recalled by the President of Fiji acting on the advice of the Prime Minister. Where there is doubt about whether there is a Prime Minster (as in this case), there is another means of recalling Parliament.
The last session of Parliament was prorogued (or ended) for six months by the President on 27 May 2000. A new session of Parliament thus began on 27 November 2000 (section 68(2) of the 1997 Constitution states that “no longer than 6 months must elapse between the end of one session and the start of another”). Under section 68(4), Parliament must be recalled by the Speaker where he receives a request in writing from not less than 18 members of the House. Where the Speaker has died (as in this case), his functions are performed by the Deputy Speaker (section 80(4)).
Can an election be held now?
Parliament may be dissolved and fresh elections called by the President of Fiji only in accordance with the 1997 Constitution. Section 59 provides (our emphasis): “The House of Representatives, unless sooner dissolved, continues for 5 years from the date of its first meeting after a general election of members of the House.”
Section 96 provides that “the President acts only on the advice of the Cabinet or a Minister or of some other body or authority prescribed by this Constitution” and that “This Constitution prescribes the circumstances in which the President may act in his or her own judgment”.
If the President has dismissed the Prime Minister, then he may “appoint a person as a caretaker Prime Minister to advise a dissolution of the Parliament” (section 109(2)). However, it is unclear whether the Prime Minster has been lawfully dismissed.
In strictly limited circumstances the President might dissolve Parliament without acting on the advice of a Prime Minister. The President, like the Australian Governor-General and similar office holders in other Commonwealth nations, may possess “reserve powers” to be unilaterally invoked by him in a crisis situation. Such a situation might arise if it is clear that Parliament is unworkable and incapable of producing a government. In this event, the President might himself act to dissolve Parliament and call fresh elections. Such a power could not be applied to any greater extent.
When would an election take place?
Once Parliament is dissolved, writs for a general election issue “within 7 days” (section 60(2)). Candidates then have 14 days after the issue of the writs to nominate for election (section 61). Polling commences not later than 30 days after the last day for the receipt of nominations (section 62). This sequence means that an election must be held at most 51 days after the dissolution of Parliament.
But the President has resigned
The President, Ratu Sir Kamisese Mara, resigned with effect from 15 December 2000. Section 88 provides that the Vice-President may exercise his functions for 3 months after this date (that is, until 15 March 2001). After that date, the powers of the President may be exercised by the Speaker of the House of Representatives (or by his Deputy).
Parliament should be recalled and a new Prime Minister chosen before a new President is appointed. Section 90 provides (our emphasis): “The President and Vice-President are appointed by the Bose Levu Vakaturaga after consultation by the Bose Levu Vakaturaga with the Prime Minister.”
1 March 2001
Geoffrey Robertson QC
Doughty Street Chambers, London
Ph: 44 20 7404 1313Email: g.robertson@doughtystreet.co.uk
Professor George Williams
Barrister, New South Wales Bar, Sydney
Director, Gilbert & Tobin Centre of Public Law
Faculty of Law, University of New South Wales
Ph: 1 416 736 5039 (currently in Toronto)Email: george.williams@unsw.edu.au
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