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Republic of Fiji Islands v Prasad

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Republic of Fiji Islands v Prasad
CourtCourt of Appeal of Fiji
Decided1 March 2001 (2001-03-01)
Citation(2001) FJCA 2
Case history
Prior action(2000) FJHC 121
Court membership
Judges sittingCasey P, Barker, Kapi, Ward, Handley JJ
Case opinions
appeal dismissed; declarations granted
Unanimous

Republic of Fiji Islands v Prasad is a 2001 landmark decision of the Court of Appeal of Fiji which upheld the 1997 Constitution of Fiji in the aftermath of the 2000 Fijian coup d'état.[1][2] The court agreed with the previous High Court of Fiji ruling that the constitution had not been overturned and that Parliament had not been dissolved, but only prorogued. It also found that the office of President of Fiji had only become vacant in December 2000 after Kamisese Mara resigned following the High Court ruling.

The interim government accepted the decision, and new elections were held in August and September 2001.

Background

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2000 coups

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On 19 May 2000 civilian gunmen led by failed businessman George Speight stormed the Fijian Parliament and took Prime Minister Mahendra Chaudhry and his government hostage.[3][4][5] Speight claimed to have seized power on behalf of ethnic Fijians, and purported to have revoked the 1997 constitution and appointed himself interim president and opposition MP Timoci Silatolu as interim prime minister.[5][6] President Kamisese Mara responded by declaring a state of emergency.[6] Following a breakdown in law and order, military defections, and a gun battle at Parliament,[7][8] Mara sacked Chaudhry for being unable to perform his functions and appointed Tevita Momoedonu, the sole cabinet member who was not in parliament when it was seized, as prime minister.[9] After advising Mara to prorogue parliament for six months, Momoedonu resigned, leaving Mara with "unfettered executive authority".[10]: 128–129 [11]: 223 

On 28 May a further breakdown of law and order saw Chief Justice Timoci Tuivaga and other judges advise RFMF commander Frank Bainimarama to take control on the basis of necessity.[10]: 134–135  After a meeting with Bainimarama and former prime minister Sitiveni Rabuka, president Mara purportedly resigned.[10]: 135–136 [11]: 223  Bainimarama then declared martial law, revoked the 1997 constitution, and took control of the country, declaring himself head of state.[12][13] On 3 July 2000 the military transferred its powers to an unelected, all-indigenous Fijian interim government headed by Laisenia Qarase[10]: 205  and tasked it with developing a new constitution which would ensure the "paramountcy" of indigenous Fijians.[14]

High court

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On 4 July 2000 Chandrika Prasad, a farmer, filed a case with the High Court at Lautoka claiming to have been adversely affected by the coup.[15] Prasad had been forced off his land by racial violence in the wake of the coup.[14] He sought declarations that the coup was unsuccessful, that the 19 May state of emergency was unconstitutional, that the purported abrogation of the constitution was unconstitutional and the constitution remained in force, that the parliament of Fiji still existed, and that the elected government was still the lawful government.[16] Prasad was assisted in his case by the Fiji Human Rights Commission.[16][17]

On 15 November 2000 Justice Anthony Gates delivered his judgement, finding that the 19 May 2000 declaration of a state of emergency was lawful, but otherwise finding for Prasad. Speight's purported overturning of the constitution did not conform to the rules for constitutional amendments, so was illegal.[18] The same logic applied to Bainimarama's purported abrogation. The doctrine of necessity invoked by Bainimarama as justification for his actions only permitted upholding the rule of law and the existing constitution, and could not be used to subvert them.[18] The interim government was therefore illegal. Parliament should be summoned as soon as practicable, and the President should appoint a new prime minister who held the confidence of the House of Representatives.[18]

On 21 December 2000 president Mara officially resigned, with his resignation backdated to 29 May.[19]

Judgment

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The interim government appealed the court ruling, arguing that the court did not have jurisdiction to decide its legality and that the 1997 constitution had in fact been abrogated.[20] The court heard the case in February 2001,[21] and delivered its judgment on 1 March. The court found that it had jurisdiction to hear the case, and agreed with the High Court that "the doctrine of necessity does not authorise permanent changes to a written constitution, let alone its complete abrogation".[22] It nevertheless considered the question of whether the coup and its aftermath had created a new legal order. Applying an efficacy test, the court found that it had not, as a rival government was "ready and willing" to resume office should the constitution be upheld, and that the change had not been overwhelmingly accepted by the Fijian people.[14][20] As a result, it disallowed the appeal, but due to the change in circumstances since the high court decision, replaced the high court's declarations with the following:

  1. The 1997 Constitution remains the supreme law of the Republic of The Fiji Islands and has not been abrogated
  2. Parliament has not been dissolved. It was prorogued on 27 May 2000 for six months.
  3. The office of the president under the 1997 Constitution became vacant when the resignation of Ratu Sir Kamisese Mara took effect on 15 December 2000. In accordance with section 88 of that Constitution, the vice-president may perform the functions of the President until 15 March 2001 unless a president is sooner appointed under section 90.[22]

In passing, the court also noted the Judicial Committee of the Privy Council's 1969 decision on Madzimbamuto v Lardner-Burke on the acts of illegal regimes, ruling that the actions of the interim regime could be recognised as valid insofar as they are required for the ordinary orderly running of the state, do not impair the rights of citizens, and do not aid in the usurpation of the constitutional order.[20]

Aftermath

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Laisenia Qarase was ultimately reappointed prime minister.

During the court hearing the interim government had promised to abide by the court's ruling,[23] and they accepted the ruling after it had been made.[24] Ousted Prime Minister Mahendra Chaudhry called for immediate elections to restore democratic rule.[25]

On 7 March 2001 the interim government resigned,[26][27] but acting president Josefa Iloilo refused their resignations and asked them to remain in a caretaker capacity.[28]

On 13 March the Great Council of Chiefs appointed Iloilo as president, with Jope Seniloli as vice-president.[29][30] The following day he sacked Choudhary and reappointed Tevita Momoedonu, who had served briefly in the role following the coup, as prime minister.[31][32][33] Momoedonu formally advised Iloilo to dissolve parliament, then resigned after less than a day in office; Iloilo then reappointed Qarase.[34][35] The dismissal, dissolution, and reappointment were subsequently unsuccessfully challenged by the Citizens Constitutional Forum in Yabaki v President of the Republic of the Fiji Islands.[36][37] Elections were finally held on 25 August and 1 September.[38]

Significance

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The case is considered to be "the most important constitutional case in the history of Fiji",[17] and a landmark case on the doctrine of necessity and the creation of new legal orders by coups and revolutions.[39] It was the first case where a domestic court had been willing to rule that a current regime which had come to power by a coup was illegal.[40]

References

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  1. ^ "Fiji court declares interim Government illegal". New Zealand Herald. 1 March 2001. Retrieved 6 August 2023.
  2. ^ "Court Rules Government of Fiji Illegal". Los Angeles Times. 1 March 2001. Retrieved 6 August 2023.
  3. ^ Sheryl Ho (19 May 2000). "GUNMEN SEIZE PRIME MINISTER HOSTAGE IN FIJI COUP BID". Fiji Crisis. Archived from the original on 22 March 2003.
  4. ^ "Fiji's PM seized in coup". The Guardian. 19 May 2000. Retrieved 6 August 2023.
  5. ^ a b "Gunmen Storm Fiji's Parliament, Announce Government Takeover". Los Angeles Times. 19 May 2000. Retrieved 6 August 2023.
  6. ^ a b "Fiji's leaders held hostage in 'ethnic' coup". Guardian. 20 May 2000. Retrieved 6 August 2023.
  7. ^ "CAMERAMAN, TWO SOLDIERS WOUNDED IN GUNFIRE NEAR PARLIAMENT". Fiji Crisis. 27 May 2000. Archived from the original on 24 February 2003.
  8. ^ "Shots fired in Fiji coup". BBC. 27 May 2000. Retrieved 6 August 2023.
  9. ^ "Fiji hostage drama has violent twist". Guardian. 28 May 2000. Retrieved 6 August 2023.
  10. ^ a b c d Field, Michael; Baba, Tupeni; Nabobo-Baba, Unaisi (2005). Speight of Violence : Inside Fiji's 2000 coup (PDF). Canberra: Pandanus Books. ISBN 9781740761703. Retrieved 19 February 2022.
  11. ^ a b Alley, Roderic (2001). "FIJI'S COUPS OF 1987 AND 2000: A COMPARISON" (PDF). Retrieved 20 February 2022.
  12. ^ "Fiji Military Takes Control And Declares Martial Law". New York Times. 30 May 2000. Retrieved 6 August 2023.
  13. ^ "Three new decrees revoke Fiji's Constitution". Fiji Crisis. 30 May 2000. Archived from the original on 22 March 2003.
  14. ^ a b c Williams, George (2001). "Constitutional law: David vs Goliath in Fiji". Alternative Law Journal. 26 (3): 146. Retrieved 6 August 2023.
  15. ^ Mary-Louise O'Callaghan (3 March 2001). "The Indian farmer who stood up for Fiji's democracy". The Australian. p. 11 – via EBSCOHost.
  16. ^ a b "The Chandrika Prasad Case Ruling". Scoop. 16 November 2000. Retrieved 6 August 2023.
  17. ^ a b Anish Chand (8 October 2022). "Tributes pour in after Prasad's death". Fiji Times. Retrieved 6 August 2023.
  18. ^ a b c Prasad v Republic of Fiji [2000] FJHC 121.
  19. ^ "Ratu Mara Resigns". Scoop. 21 December 2000. Retrieved 6 August 2023.
  20. ^ a b c "PACIFIC HUMAN RIGHTS LAW DIGEST - VOLUME 1". PACLII. Retrieved 6 August 2023.
  21. ^ "Court could consign Fiji to apartheid". The Guardian. 19 February 2001. Retrieved 6 August 2023.
  22. ^ a b Republic of Fiji Islands v Prasad [2001] FJCA 2.
  23. ^ "Fiji regime vows to accept court ruling". The Australian. 23 February 2001. p. 7 – via EBSCOHost.
  24. ^ "Leaders promise democratic rule". Melbourne Herald Sun. 2 March 2001. p. 31 – via EBSCOHost.
  25. ^ "Chaudhry urges fresh ballot". The Australian. 8 March 2001. p. 7 – via EBSCOHost.
  26. ^ "Fiji's interim govt set to quit". The Tribune. 7 March 2001. Retrieved 6 August 2023.
  27. ^ "Qarase offers President his resignation in wake of court ruling". Sydney Morning Herald. 8 March 2001. p. 10 – via EBSCOHost.
  28. ^ "Fiji leader asked to stay". Melbourne Herald-Sun. 10 March 2001. p. 22 – via EBSCOHost.
  29. ^ "Moderate to steer Fiji". Sydney Daily Telegraph. 14 March 2001. p. 39 – via EBSCOHost.
  30. ^ "Fiji chiefs tell Iloilo to keep up good work". New Zealand Herald. 13 March 2001. Retrieved 6 August 2023.
  31. ^ "Fiji to appoint new prime minister". CNN. 14 March 2001. Retrieved 6 August 2023.
  32. ^ "Fiji PM sacked by president". Sydney Daily Telegraph. 15 March 2001. p. 27 – via EBSCOHost.
  33. ^ "Fiji media see political crisis deepening". New Zealand Herald. 15 March 2001. Retrieved 6 August 2023.
  34. ^ "Fiji president hands reins back to Lai Qarase". Brisbane Courier-Mail. 16 March 2001. p. 12 – via EBSCOHost.
  35. ^ "Fiji gets another new PM". Melbourne Herald-Sun. 16 March 2001. p. 35 – via EBSCOHost.
  36. ^ "Speight for trial, election on way in Fiji". The Australian. 12 July 2001. p. 7 – via EBSCOHost.
  37. ^ Yabaki v President of the Republic of the Fiji Islands, 2001 FJHC 116 (High Court of Fiji 11 July 2001).
  38. ^ "Fiji goes to the polls in a return to democracy". Sydney Daily Telegraph. 24 August 2001. p. 33 – via EBSCOHost.
  39. ^ Anna Dziedzic (10 December 2019). "Landmark and Limitations: Republic of Fiji v Prasad". Constitutional Landmark Judgments in the Commonwealth. Retrieved 6 August 2023.
  40. ^ Lee, Stephen (2001). "Constitutional Crisis in Paradise: The Fiji Court of Appeal Decision in Republic of Fiji v Prasad". Australian Journal of Asian Law. 3: 280. Retrieved 6 August 2023.
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