Constitutional theory and Fiji’s many coups

President Iloilo

[Cross-posted from the blog I run for CDU public law students]

There doesn’t seem to be anything especially remarkable about the current (2009) Fiji coup whereby Fiji’s ageing and ailing President Josefa Iloilo sacked the Fiji Court of Appeal which only last week declared the 2006 coup of Commodore Frank Bainimarama illegal (although keep an eye on Google News for further developments). Watch the ABC video of the events here.

It looks like Iloilo is acting at the behest of PM Bainimarama, who seemed when he initially took over to be acting for the selfless if unconstitutional motive of ensuring that the plotters of a previous coup in 2000 (also led by another army officer George Speight) didn’t escape unpunished by the (democratically elected) Chaudry government.

However Bainimarama seems subsequently to have become addicted to power, a victim of Lord Acton’s famous dictum that “power corrupts and absolute power absolutely”. As Kathy Marks reports in The Independent:

The move, greeted with dismay by Fiji’s neighbours, came 24 hours after the country’s Court of Appeal pronounced the military government led by Frank Bainimarama invalid. Commodore Bainimarama, head of the armed forces, seized power in 2006 and has run the South Pacific island nation a former British colony and popular tourism destination as a virtual dictatorship since then.

Among the judges dismissed by President Josefa Iloilo were the three who on Thursday declared Commodore Bainimarama’s coup illegal. The ageing, ailing Mr Iloilo told Fijians in a national televised address, rather chillingly, that he was establishing a “new order”. He is expected to reappoint the maverick commodore, a close friend, as Prime Minister. [and has now done so – KP]

The dramatic worsening of the political situation in a country once viewed as a tropical paradise followed calls earlier this week by the US Secretary of State, Hillary Clinton, for a date to be set for democratic elections by 1 May. The 16-nation Pacific Islands Forum has threatened to suspend Fiji unless it meets that deadline, and the Commonwealth says it will take similar action.

Rod Alley, a senior fellow at New Zealand’s Centre for Strategic Studies, said of the President’s televised address: “It looked like a prepared statement by Bainimarama, delivered by Iloilo. This is extraordinary and doesn’t look good for Fiji.” …

The armed forces chief led his own coup Fiji’s fourth such takeover in 20 years in December 2006 after Laisenia Qarase, who had won two free elections, resisted his demands to resign. Mr Iloilo, who is 88 and suffers from Parkinson’s disease, was appointed President in 2000 by Mr Speight.

Supplanted by Commodore Bainimarama, who assumed presidential powers following his coup, he was reappointed a few weeks later by the coup leader. The following day, Mr Iloilo believed to be the world’s oldest head of state appointed the Commodore Prime Minister.

Thursday’s Court of Appeal decision, which upheld a legal challenge to the military regime by the ousted Mr Qarase, left Fiji an archipelago of more than 300 palm-fringed islands in limbo. The judges instructed the President to dissolve parliament, appoint an independent caretaker prime minister and prepare the nation for prompt elections.

Instead, Mr Iloilo reappointed himself, awarded himself executive powers and abrogated the constitution a decision that the President “came up with … on his own”, Commodore Bainimarama assured Radio Australia yesterday. The latter added that he would be willing to return to the job of prime minister.

The Commodore, a rugby fanatic and military history buff who has trained in Australia and the US, likes to portray himself as a champion of multiculturalism. He claimed to be putting off elections only in order to rewrite the constitution, which he said accentuated divisions between ethnic Indians and indigenous Fijians. Critics accuse him of wanting only to cling to military-backed power for as long as possible, caring little about Fiji’s status as an international pariah, and the impact on its tourism and sugar export industries.

The immediate future for Fiji looks depressing. Many Fijian-Indians, who kept the country fairly prosperous but in the process provoked the resentment of native Fijians, have “voted with their feet” and left Fiji permanently, while international sanctions exacerbate a deteriorating economic situation in what once seemed an island paradise and a successful example of transplantation of Westminster liberal democratic constitutionalism into alien ethnic soil.

In many ways, however, the aftermath of the 2000 coup in Fiji was much more interesting from a constitutional lawyer’s viewpoint. After that coup too, the Fiji Court of Appeal declared the post-coup Speight government unconstitutional, but on that occasion Speight and the other coup leaders accepted the Court of Appeal’s decision and constitutional rule was restored. Ironically given his pretext for seizing power in the first place, Bainimarama learnt the lesson of Speight’s fate and clearly has no intention whatever of accepting the constitutional referee’s decision. He had his tame-cat President sack the referee instead and declare Bainimarama the winner over the judiciary by TKO!!

Australian constitutional lawyer George Williams (co-author of your Blackshield and Williams textbook) was one of the counsel in the Court of Appeal case of Republic of Fiji v Prasad in 2001 which led to the restoration of constitutional democracy in Fiji (well, for a while anyway). He recounts the events and discusses some of the legal arguments in this article from the Melbourne Journal of International Law.

Some constitutional law questions:

  • What do these events tell us (if anything) about the durability of Dicey’s rule of law concept in a non Anglo-Saxon culture?
  • How transplantable is the “Washminster” system of liberal democratic constitutionalism (of which Fiji like Australia is an example) to a non Anglo-Saxon culture?
  • Fiji’s Constitution essentially places the President in the same position as Australia’s Governor-General i.e. he mostly acts on advice of the elected government but has reserve powers of dismissal etc. See Chapter 7 starting with section 85. However, unlike Australia’s Constitution, the President’s reserve powers are expressly defined in the Constitution rather than being matters of unwritten convention. Do the events in Fiji provide any support for the arguments of Australian monarchists that reserve powers can’t adequately be defined and are therefore best left to convention? Or is there some other lesson?
  • How comparatively important is constitutional design to a country’s stability and freedom, compared with its history, culture, economic conditions, ethnic mix etc?
  • What is Kelsen’s “theory of pure law” in the context of the international law legitimacy or otherwise of post-coup governments? [hint: it’s discussed in George Williams’ article linked above, and in the Blackshield and Williams textbook – chapter 1] How persuasive do you find it? Does it make any difference, or is the effective deployment of force all that matters? If that’s true, what is the difference between a national government and the mafia?
  • Classical liberals would no doubt argue that Fiji’s problems stem not only from patchy respect for rule of law but also from a lack of free markets, especially in relation to property rights. Ethnic Fijians not only enjoy constitutional preference in various ways but also effectively monopolise land ownership. How convincing do you find the classical liberal argument?Could it be a factor? Or do post-colonial theorists have a point in arguing that it’s fair enough for indigenous peoples to safeguard their effective sovereignty by controlling the rights of immigrants? I wonder what would have occurred had indigenous Australians managed to remain a majority and achieved that sort of control?

About Ken Parish

Ken Parish is a legal academic at Charles Darwin University, with research areas in public law (constitutional and administrative law) and teaching & learning theory and practice. He has been a legal academic for almost 12 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in he early 1990s.
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