Legal Research

Fiji Constitution Suspended

By Simon Chester

From the Pacific a significant decision has prompted a new Grundnormon the judgment of the Fiji Court of Appeal which resulted in the President suspending the constitution and reappointing the interim executive that came to power in the coup. Here is the judgment appealed from.

The President coolly says:

With this abrogation I appoint myself as the Head of the State of Fiji under a new legal order. To effect the abrogation I decree the following:

? Abrogation of the 1997 Constitution, which succeeded the 1990 Constitution
? Appointment of the Head of State
? Continuation of Existing Laws; and
? Revocation of Appointment of All Judicial Officers

I shall be making further decrees in the days to come.

Through the Revocation of Appointment of Judicial Officers Decree, all judicial appointments are no longer in place.

The Commonwealth has issued strong statements on March 4, April 9 and April 10.

Good background from Suva , from the South Asian Analysis Group and from London.

Constitutional scholars will recall the Prasad case: The Case that Stopped a Coup? The Rule of Law and Constitutionalism in Fiji by George Williams, (Anthony Mason Professor and Director, Gilbert & Tobin Centre of Public Law, Faculty of Law, University of New South Wales; Barrister, New South Wales Bar)

The decision of the Court of Appeal of Fiji in Republic of Fiji v Prasad is a landmark in the development of the common law. It sets an important precedent that demonstrates that courts can play a meaningful role in the most lawless of situations, the military coup, in promoting a restoration of democracy and the displaced constitutional order. The decision illustrates the two legal approaches available to judges in analysing the actions of a usurper, those of necessity and effectiveness. This article examines the use of these doctrines in Fiji and finds, taking into account constitutional and normative principles, that necessity ought to be the preferred approach, and that effectiveness ought only be to applied in cases of judicial last resort.

An Oxford student note from 2000 updated in 2007 and an account of human rights in Fiji. The Human Rights Commission provided a whitewash for the last coup. It’s time to reread Madzimbamuto v Lardner-Burke [1969] 1 AC 645 (PC) [especially the judgment of Lord Reid]

Full post as published by Slaw.ca on April 11, 2009 (boomark / email).