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Journal of South Pacific Law - Fiji Islands Crisis

COMMENTS ON THE USE OF THE RESERVE POWERS TO DISMISS A PRIME MINISTER AND ON THE POWER TO ABROGATE OR AMEND THE FIJI CONSTITUTION

By Dr George Williams *

 

USE OF THE RESERVE POWERS TO DISMISS A PRIME MINISTER

The established rule in Commonwealth nations with a Westminster system of Government, such as Fiji, is that a President must act on the advice of the Prime Minister and other members of the executive. This is set out in section 96(1) of the Fiji Constitution. However, it has been recognised that in limited circumstances a President may act other than in accordance with the advice of the Government. In such case, the President is said to exercise a reserve power.

In Australia, the Governor-General may exercise a reserve power to dismiss the Prime Minister:

1. Where the Government has lost the confidence of the lower house of Parliament as a result of a vote of that chamber.
2. Where the government is persisting in illegal or unconstitutional
   conduct.

In Australia, there is a third possible situation in which a reserve power might be used to dismiss a Government. On 11 November 1975, Governor-General Sir John Kerr dismissed Prime Minister Mr Gough Whitlam on the basis that he had not been able to obtain the passage of the budget bills through the Senate and was refusing to resign or advise a dissolution of Parliament. Even if it were accepted that Sir John Kerr acted correctly in 1975, this does not suggest that a Prime Minister could be dismissed in any emergency or like situation. It only suggests that a Prime Minister might be dismissed in the event of a failure to pass the budget bills.

If the Prime Minister of Fiji were to be dismissed by the President other than in accordance with a proper exercise of the reserve powers, this would constitute a breach of the Constitution and of the rule of law. This is reinforced by section 109(1) of the Fiji Constitution (which limits when the reserve powers may be exercised):

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. Where there is no reserve power that may be exercised, the appropriate course for a President is to allow the issue to be determined on the floor of the Parliament.

 

ABROGATION OR AMENDMENT OF THE FIJI CONSTITUTION

A basic principle of constitutional law is that the manner and form procedures set down for the alteration of a Constitution must be complied with if the amendment is to be effective. The mechanism for achieving this is set out in the Fiji Constitution itself. Importantly, section 190 makes it clear that this is the only way that the Constitution may be altered. It provides that the Constitution ‘may not be altered in any other way’.

The exact process is provided by section 191. The parliamentary procedure there set out must be followed and a Bill incorporating the changes must gain the support of:

1. at least two-thirds of the members of each House of the Fiji Parliament; or

2. if the Prime Minister certifies that a particular amendment is an urgent measure, then a majority of at least 53 of the 71 members (three quarters) of the House of Representatives and a majority of the members of the Senate.

Section 192 limits this power in one respect. The number of seats in the House of Representatives allocated to each ethnic group cannot be altered unless a specified level of support is received from the representatives of that group. For example, 19 of the 71 members of the House are elected by persons on the Indian electoral roll. Section 192 states that this level of representation cannot be changed unless amendment receives the support of at least 13 of the 19 Indian members.

As a consequence of these provisions, there is only one lawful way to repeal the Constitution entirely. A Bill must be passed by the required majorities in the Fiji Parliament, including with the specified level of support from each group of ethnic representatives.

The law of Fiji is clear. The Constitution can only be abrogated by following these procedures. To do otherwise would breach the rule of law.

The Constitution establishes the Parliament as the sole arbiter of constitutional change. No power to abrogate or amend the Constitution is conferred upon the President or upon the Great Council of Chiefs (Bose Levu Vakaturaga).

 

* Dr Williams is a Barrister and Senior Lecturer in Constitutional Law at the Faculty of Law, Australian National University. He is the author of several books on constitutional law, and co-author of one of Australia's leading textbooks in the field, ‘Australian Constitutional Law and Theory: Commentary and Materials’ (2nd ed, 1998). As a barrister, he appears in the High Court of Australia on matters raising constitutional issues.

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