Qarase v Bainimarama [2009] FJCA 67; [2009] 3 LRC 614 (9 April 2009)

[2009] 3 LRC 614

COURT OF APPEAL OF FIJI

QARASE and OTHERS v BAINIMARAMA and OTHERS

[2008] FJHC 241 & [2009] FJCA 9

High Court
Gates Ag CJ, Byrne and Pathik JJ
5-20 March, 9 October 2008

Court of Appeal
Powell, Lloyd and Douglas JJA
6-9 April 2009

(1) Constitutional law - Constitution - President - Powers - Prerogative powers - Existence - Scope - Coup d’etat - Military establishing interim government - President subsequently declaring state of emergency - President purporting to dismiss Prime Minister, appoint military commander as interim Prime Minister, ratify acts of interim Prime Minister, rule directly and grant immunity to coup participants - Prerogative powers not mentioned in Constitution - Whether abrogated - Whether President's act justiciable - Whether constitutional - Relevant considerations - Appropriate relief - Constitution of Fiji 1990, s 163 - Constitution of Fiji 1997, ss 2-3, 60, 85-87, 96, 98, 109, 120, 187.

(2) Constitutional law - Constitutional breakdown - Doctrine of necessity - Application - Scope - Presidential powers - Coup d'etat - Military establishing interim government - President purporting to dismiss Prime Minister, appoint military commander as interim Prime Minister - President ratifying dissolution of Parliament and call for fresh elections - Whether Parliament having power to appoint interim Prime Minister - Whether presidential actions justified under doctrine of necessity - Constitution of Fiji 1997, ss 3, 60, 109(2).

There were a number of public and private hostile and acrimonious exchanges between the first defendant, B (the Commander of the Republic of Fiji Military Forces (‘the RFMF’)), and the first plaintiff Q (the Prime Minister), leading to a series of requests by the RFMF to Q's government, which were not acceded to. On 5 December 2006 the RFMF took control of the streets of the capital and B assumed the executive authority of the state. B then purported to exercise presidential powers, appointing S as a caretaker Prime Minister to advise the dissolution of Parliament. On 4 January 2007 S tendered his resignation as caretaker Prime Minister to the Commander. In the afternoon of the same day B purported to hand back executive power to the President. Thereafter the President ratified the actions of B and appointed B as interim Prime Minister and other lay persons as ministers to advise him in a period of direct presidential rule. The President ratified the call for fresh elections and indicated that legislation in the intervening period, prior to the formation of a democratic government, was to be made by promulgation. The President thereafter gave directions for absolving B and his followers to facilitate their immunity. On 18 January 2007 the President, purportedly exercising his own deliberative powers as President, promulgated an unconditional grant of immunity. The Constitution provided, inter alia, that: `The executive authority of the State is vested in the President' (s 85); 'The President is the Head of State and symbolises the unity of the State' (s 86); `The President is the Commander-in-Chief of the military forces' (s 87); 'This Constitution prescribes the circumstances in which the President may act in his or her own judgment' (s 96(2); `The President, acting in his or her own judgment appoints as Prime Minister the member of the House of Representatives who, in the President's opinion, can form a government that has the confidence of the House of Representatives' (s 98); 'If a Prime Minister who has lost the confidence of the House of Representatives ... advises a dissolution of the House of Representatives, the President may, acting in his or her own judgment, ascertain whether or not there is another person who can get the confidence of the House of Representatives' (s 108(2)); The President may not dismiss a Prime Minister unless the Government fails to get or loses the confidence of the House of Representatives ...' (s 109(1); 'The High Court... has original jurisdiction in any matter arising under this Constitution or involving its interpretation' (s 120(2)). Q and the other plaintiffs brought proceedings for declarations challenging the lawfulness of the acts carried out by the President following military intervention in the government of the state, submitting that the President's powers were circumscribed within the confines of the Constitution with regard to the dismissal of the Prime Minister and his Cabinet and the dissolution of Parliament. B and the other defendants maintained that the President retained reserve, prerogative powers, enabling him to act in an emergency for the public good and to ratify the acts of the military in the subsequent takeover, thus absolving the participants of any unlawfulness. The High Court, constituted as a Bench of three judges, gave permission for the proceedings to be covered by television for daily re-broadcast.

HELD: (in the High Court) Application dismissed. Validity of President's (i) acts of ratification, (ii) decision to rule directly and to make and promulgate legislation and (iii) grant of immunity upheld.

(1) In the absence of mala fides or arbitrariness, the existence only, but not the exercise, of the President's power to appoint ministers was susceptible to judicial review. The Constitution had neither expressly nor by necessary implication abrogated the application of any of the relevant prerogative powers formerly available to the Governor General: the greater the power, the clearer the requirement for the form and language of ouster. Those prerogative powers, the residue of discretionary or arbitrary authority which was formerly left in the hands of the Crown, included the power to preserve the state from civil strife and to act in an emergency to ensure the well-being and safety of the people. The dismissal of Q as Prime Minister, the dismissal of the Cabinet, the appointment of a caretaker Prime Minister to advise on the dissolution and the dissolution itself were not carried out in compliance with the appropriate sections of the Constitution. However, no specific mention was made in the Constitution of the prerogative as such, nor could repeal of the powers be read into such silence. The national security prerogative could only be abrogated by express words or by words of necessary implication. The prerogative as part of the common law of Fiji sat happily with statute law. Sections 85-87 of the Constitution could not be regarded as a code: the sections did not in detail set out the reserve powers of the President in matters of the prerogatives, those of defence of the realm, of national security and of securing the peace, protection and safety of the people. The ultimate reserve power of the President was indicated as a continuing common law power in ss 85-87 of the Constitution. Extraordinary powers were allowed to a head of state to find a way out of crisis, on the grounds of extremity, gravity and ensuing expediency. If the head of state acted in a crisis without mala fides and addressed the grave problems in a way that he believed honestly addressed those problems, whether in peace time or war, the court would uphold his action. In the instant case, the President had intended to use the prerogative: his address to the nation had made it clear that he accepted that there was a grave crisis which he considered required hard and decisive decisions. Direct presidential rule was clearly a step outside the norm of the Constitution and a manifestation of an intention to exercise prerogative power. There was no suggestion that the President had failed to act honestly, impartially, neutrally and in what he gauged was in the best interests of the nation, i.e. of all of the inhabitants of Fiji. It was not for the court to inquire into the details of his acts or to comment on whether one action would have been better done another way. The President's decision to exercise prerogative powers to rule directly, until suitable elections could be conducted, necessarily involved ratifying the acts already carried out by B. On the facts, exceptional circumstances existed, not provided for by the Constitution, and the stability of the state was endangered. No other course of action was reasonably available and such action as was taken by the President was reasonably necessary in the interests of peace, order and good government. The President had a prerogative power, because an emergency had arisen, to rule directly until suitable elections could be conducted, which power included a power on the part of the President to dismiss the Prime Minister, dissolve the Parliament and to appoint ministers, including B as Prime Minister in the interim (see paras [79]-[102], [104]-[106], [122]-[123], [125], [130], [132]-[136], [147]-[149], [153], [155], [157], [160], [163], [171]-[173], below). Dicta of Lord Cozens-Hardy MR in Re X's Petition of Right [1915] 3 KB 649 at 660, of Lord Parmoor in A-G v De Keyser's Royal Hotel [1920] UKHL 1; [1920] AC 508 at 567, of Viscount Dunedin in Bhagat Singh v King-Emperor (1931) LR 58 IA 169 at 171-173, of Viscount Sankey LC in British Coal Corporation v R [1935] AC 500 at 519, of Viscount Simon in King-Emperor v Benoari Lal Sarma [1945] 1 All ER 210 at 212, of Lord MacDermott in Ningkan v Government of Malaysia [1970] AC 379 at 390-391, of Viscount Radcliffe and of Lord Upjohn in Burmah Oil Co Ltd v Lord Advocate [1964] UKHL 6; [1964] 2 All ER 348 at 365, 396-397, of Lord Fraser of Tullybelton in A-G of Fiji v DPP [1983] 2 AC 672 at 678, of Lord Scarman, Lord Diplock and Lord Roskill in Council of Civil Service Unions v Minister for Civil Service [1985] LRC (Const) 948 at 1023, 1025-1026, 1036, of Nourse LJ in R v Home Secretary, ex p Northumbria Police Authority [1988] 1 All ER 556 at 575 and Juan Ponce Enrile v Ramos, Chief, Philippine Constabulary [1974] PHSC 353 applied.

Per curiam. (i) Prerogative powers are not immutable and coercive orders can be made against the state for breaches of an individual's constitutional rights (see para [103], below). Gairy v A-G [2001] UKPC 30, [2001] 4 LRC 671 applied. (ii) The President's actions had not consolidated any revolution: the Constitution remained, and remains, intact. The government exists in the interim by way of direct presidential rule (see paras [3], [146]-[149], [161], below).

(iii) Parliament is the constitutional forum for the consideration of new legislation. It would be constitutionally appropriate for the incoming Parliament to consider all decrees or promulgations made in the intervening period which have not received the scrutiny of the full parliamentary process. Promulgations with far-reaching effect on the lives of citizens require such scrutiny and representative assent. Meanwhile, such legislation is of lawful effect. Subsequently it will be for Parliament to decide whether to continue with such legislation or whether some amendment is necessary (see para [164], below).

(2) Unlike the prerogative or ultimate reserve power, which rested with one person only, the head of state, the doctrine of necessity was available, in appropriate circumstances, to every citizen. Those wishing to invoke that doctrine had to satisfy the conditions prescribed by authority. The head of state was in an extremely different, special and singular category: if he acted without mala fides and addressed grave problems, in a way that he believed honestly addresses those problems, the courts would uphold his actions. However, approaching the appraisal on the basis of allowing the President a very wide ‘margin of appreciation’, his actions satisfied the conditions prescribed, albeit for the exercise of a different power, by Republic of Fiji v Prasad [2001] 2 LRC 743 (see paras [3], [146]-[149], [161], below). Dicta of Haynes P in Mitchell v DPP [1986] LRC (Const) 35 at 88-89, Juan Ponce Enrile v Ramos, Chief, Philippine Constabulary [1974] PHSC 353 and Republic of Fiji v Prasad [2001] 2 LRC 743 applied.

The plaintiffs appealed to the Court of Appeal.

HELD: (in the Court of Appeal) Appeal allowed. Declarations granted that dismissal of Q and other ministers, dissolution of Parliament and purported acts of ratification by the President were unlawful and unconstitutional. Declarations granted that the appointments of B as Prime Minister and his ministers were not validly made. Declaration granted that it would be lawful for the President to appoint a caretaker Prime Minister, to advise a dissolution of Parliament and to advise the President that writs for the election of members of the House of Representatives be issued.

(1)(i) The consequences of a written Constitution creating the institutions of government with certain defined powers, and courts thereby invested with jurisdiction to adjudicate on whether the legislative and executive had acted within those powers, were: firstly, a fundamental change from parliamentary to constitutional sovereignty founded in people's consent; secondly, the roles of the common law and constitutional law were reversed and, thirdly, all law was governed by the Constitution: therefore the common law could not develop inconsistently with the Constitution. The Constitution had to be read in light of the common law (s 3(b)). The content of s 85 executive power was informed by the common law but it did not necessarily pick up all common law prerogatives. The right question was what was the scope of the s 85 power. In light of s 120(2) of the Constitution, it would be surprising if the existence and scope of the executive power or any other asserted power of the President could not be reviewed. Therefore the court was given express jurisdiction to interpret and determine whether a purported power exercised by the President existed pursuant to s85 of the Fiji Constitution or otherwise. The defendants did not contend that as a matter of law the court could not consider the scope of the executive power under s85 or whether the prerogative power had been abrogated by the Constitution. The court could say whether there was a power to appoint the Commander as Prime Minister. It could not, however, interfere with the President's choice of Prime Minister if that power existed (see paras [78]-[85], below). Theophanous v The Herald and Weekly Times Ltd [1994] 3 LRC 369, Pharmaceutical Manufacturers Association of South Africa [2000] ZACC 1; 2000 (2) SA 674 and Ruddock v Vadarlis [2001] FCA 1329, (2001) 110 FCR 491 considered.

(ii) The Constitution made it clear that it was a document that had the sanction and support of all levels of society, and all of the diverse communities that lived in the islands, with all of their faiths, traditions, languages and cultures. A Constitution with such aims and aspirations would aim to ensure that the circumstances in which a Prime Minister could be dismissed would be clearly defined. Section 109 of the Constitution dealt expressly with the circumstances in which the President might dismiss a Prime Minister, viz where the government failed to get or lost the confidence of the House of Representatives and the Prime Minister did not resign or get a dissolution of the Parliament. Section 109(2) provided that if the President dismissed a Prime Minister, the President could, acting in his own judgment, appoint a person as a caretaker Prime Minister to advise a dissolution of Parliament. In relation to the appointment or dismissal of a Prime Minister, s109(2) and s98 were the only provisions to state that the President could exercise his own judgment. In those cases such judgment was carefully confined or for a very limited purpose. The question for the court was whether under the Constitution the President had a discretion to dismiss a Prime Minister in circumstances other than those set out in s109, and appoint another caretaker Prime Minister to advise a dissolution of Parliament and appoint an interim government. The answer to that question was to be found in s96(2), which provided that the Constitution prescribed the circumstances in which the President might act in his own judgment. It was therefore clear that it was not intended that the President, in the exercise of discretion, could dismiss a Prime Minister in circumstances other than those set out in s109 and in effect establish an interim government. The President, as a matter of a textual constitutional interpretation, was limited by the terms of the Constitution, including his right to do anything otherwise than on advice was strictly limited see paras [91]-[94], [106]-[107], [109], below).

(iii) In the case of a Republic, such as Fiji, it was not clear that the prerogative powers would continue in existence after the adoption of a detailed written Constitution, such as that which was adopted in 1997. The relevant questions for the court were: what was included in the executive authority of the state vested in the President by s85 and possibly s86 of the Constitution, what other discretions were vested in the President by the Constitution and whether the implication of some other power of dismissal would be consistent with the Constitution. The absence of any reference to the prerogative in the Constitution was not conclusive. There was no basis for the suggestion that, once Fiji became a Republic, prerogative powers were vested in the President under the Constitution independently of the specific provisions thereunder. The provisions of the Constitution sought to limit clearly the circumstances in which the President could dismiss the Prime Minister, when other ministers of the Crown could be dismissed and other discretions confided in the President. The words of limitation in s96(2), which clearly intended to limit precisely the discretions of the President to the circumstances prescribed in the Constitution, were not to be ignored. There was a clear intention to exclude laws inconsistent with the Fiji Constitution, which intention was inconsistent with the continued existence of the prerogative in the President, at least in relation to the President retaining reserve powers to dismiss the Prime Minister which were not found expressly in the Constitution (see paras [112], [115], [117]-[118], [120], [122], [125], [127]-[128], below). President of the Republic of South Africa v Hugo [1997] ZACC 4; 1997 (4) SA 1 considered. British Coal Corporation v R [1935] AC 500 and A-G of Fiji v DPP [1983] 2 AC 672 distinguished.

(iv) Section 187 of the Constitution conferred legislative power upon Parliament to confer emergency powers on the President. Moreover, s163 of the 1990 Constitution, which it replaced, conferred powers upon the President to issue a 'Proclamation of Emergency' if the President was satisfied that a grave emergency existed whereby the security or economic life of Fiji was threatened. That made it inherently unlikely that the President, personally, acting otherwise than on advice, had those powers without such a conferral under the 1997 Constitution. The existence of s187 was a clear indication that national security matters were not matters which were left to the prerogative. The existence of an implied right in the President arising from the prerogative, acting otherwise than on the advice of the Prime Minister to dismiss the government, to dissolve the Parliament and establish an interim government in the face of an emergency, was inconsistent with that provision. Under the Constitution it was the Prime Minister and his Cabinet who had the responsibility to lead the country through a crisis, and to advise the President in relation thereto. The defendants' argument was flawed and exposed the fact that what had occurred in the instant case and previous cases was simply a military coup or an unlawful usurpation of power (see paras [123], [130], [132]-[136], below). A-G v De Keyser's Royal Hotel Ltd [1920] UKHL 1; [1920] AC 508, Burmah N Co Ltd v Lord Advocate [1964] UKHL 6; [1964] 2 All ER 348 and R v Home a Secretary, ex p Northumbria Police Authority [1988] 1 All ER 556 distinguished.

(v) None of what was done in the circumstances as described was sanctioned by the Constitution. Throughout the period when the material events occurred Q retained and had not lost the confidence of the House of Representatives, so no power on the part of the President, or the Commander of the RFMF on behalf of the President, existed to dismiss the Prime Minister. Even if the President had the reserve or prerogative powers relied upon, notwithstanding the express terms of the Constitution, and assuming that such powers had been exercised by the President, they did not extend to what had been done. The first amicus curiae made the somewhat ambivalent submission that it might be possible for the President to delegate his authority in the way that the Queen delegated her authority to Governors General, but in the instant case there had been no prior delegation but rather subsequent ratification and, in any event, an authority could not delegate power to do that which it could not do itself (see paras [147]-[149], below). Dicta of Wright J in Firth v Staines [1897] UKLawRpKQB 86; [1897] 2 QB 70 at 75 and of Harman J in Boston Deep Sea Fishing and Ice Co Ltd v Farnham (Inspector of Taxes) [1957] 3 All ER 204 at 208-209 applied.

Per curiam. (i) The circumstances in which the monarch, or the Governor General or Governor of a British Dominion or colony, can exercise the reserve powers of the Crown to dismiss a Prime Minister or Premier are a matter of great and ongoing controversy. The question whether the monarch or a representative of the Crown had any power to dismiss a Prime Minister who had the confidence of the lower house and no difficulty in obtaining supply is a controversial one (see para [102], below).

(ii) At the time that the 1997 Constitution was being drafted, Fiji had been beset by a major political upheaval and the abrogation of its existing Constitution. Hence the drafters of the 1997 Constitution, and the Fijian people, in adopting that Constitution, would have wanted as much certainty as they could obtain in the provisions dealing with the dismissal of a Prime Minister (see para [103], below).

(iii) Section 2 of the Constitution makes it clear that any law inconsistent with the Constitution is invalid to the extent of the inconsistency. That would include the prerogative if it permitted dismissal of the Prime Minister otherwise than as set out in the Constitution (see para [124], below).

(2)(i) The existence of the principle of necessity had not been challenged by either party and could not be denied its application to justify what was in effect a military coup was undoubtedly dubious. In any event, given the manner in which the case had been litigated in the High Court, the defendants / respondents could not rely on the doctrine of necessity as described in Prasad; the High Court judgment recorded that the doctrine had not figured as a matter of dispute between the parties: evidence and argument had not been directed to establish that issue. The respondents' submission was that `state necessity' in the time of an emergency or crisis was the ultimate source of the President's power and differed from the doctrine of necessity described in Prasad, empowering the President to act outside the terms of the Constitution; alternatively, that it was a power implied under the Constitution. While such a power might exist in other jurisdictions, the framers of the Constitution, by including Ch 14 (Emergency Powers), intended to exclude the existence of any such power of state necessity as the source of the President's power to act as had had done in January 2007. The doctrine of necessity described in Prasad might well empower a President to act outside the terms of the Constitution but ultimately only for the purposes of restoring the Constitution. There was no room for the application of the Prasad principle in the instant case, apart from its limited application to ensure that writs for fresh elections were issued (see paras [139]-[143], below). Dicta of Haynes P in Mitchell v DPP [1986] LRC (Const) 35 at 88-89 and Republic of Fiji v Prasad [2001] 2 LRC 743 considered.

(ii) Whatever the constitutionality of the events the subject of the instant proceedings, it could not be ignored that there had been an interim government in Fiji for more than two years. The dismissal of Q and the other ministers of his government and the dissolution of Parliament was unlawful and in breach of the Constitution. The appointments of B as Prime Minister and his ministers were not validly made. However, those events, though unlawful, had occurred. The only appropriate course was for elections to be held that enabled Fiji to get a fresh start, in order to issue writs for elections the President required the advice of the Prime Minister under s60 of the Constitution. That section could be given a purposive construction, in accordance with s3 of the Fiji Constitution, to cover circumstances where the Prime Minister had been forcibly removed from office and no other Prime Minister had been validly appointed in his place. That would enable the President on the advice of an interim Prime Minister to dissolve Parliament and to issue writs for fresh elections under ss109 and 60 of the Fiji Constitution in circumstances (a) where the Prime Minister had ceased to hold office in circumstances not contemplated by the Constitution, (b) where he had resigned without a successor being appointed and (c) where no provision was made for that eventuality in the Constitution. To that limited extent, the court could take cognisance of the principle of necessity or the de facto doctrine for the purposes of the instant proceedings. It would therefore be lawful for the President acting pursuant to s109(2) of the Fiji Constitution, or as a matter of necessity, to appoint a person a caretaker Prime Minister, for the purpose of advising a dissolution of the Parliament and to advise the President that writs for the election of members of the House of Representatives be issued (see paras [147]-[148], [150], [153], [156], [158], [160], [165]-[166], [171], below).

Per curiam. (i) It would be advisable for the President to overcome the present situation by appointing a distinguished person independent of the parties to this litigation as caretaker Prime Minister, to advise a dissolution of the Parliament, assuming it is not already dissolved, and to direct the issuance of writs for an election under s60 of the Constitution. This would enable Fiji to be restored to democratic rule in accordance with the Constitution and quash any arguments about the legitimacy of Q's governments or the Republic as currently constituted, in recommending this course, the court is fortified by the public statements of both the President and B that the mandate of the interim government was to uphold the Constitution and that the interim government was anticipated to take the people smoothly to the next elections (see para [162], below).

(ii) The validity of any acts of the interim government are not in issue in these proceedings and would be better dealt with on a subsequent occasion, if necessary. Prasad and the decision of the Privy Council in Madzimbamuto v Lardner-Burke recognise that acts done by those actually in control without lawful authority may be recognised as valid or acted upon by the courts, with certain limitations, viz so far as they are directed to, and are reasonably required for, the ordinary orderly running of the state, so far as they do not impair the rights of citizens under the lawful Constitution and so far as they are not intended to and do not in fact directly help the usurpation (see para [163], below). Madzimbamuto v Lardner-Burke [1968] UKPC 2; [1968] 3 All ER 561 and Republic of Fiji v Prasad [2001] 2 LRC 743 considered.

(iii) While it was not for the court to delve into the public debate as to the acceptance or refusal of judicial appointments to the courts of Fiji, to refuse such appointments would deny the people of Fiji access to justice and the rule of law and undermine the Constitution, which provided in s118 that judges are independent of the legislature and executive. In Fiji judges are appointed by the President on the advice of the judicial Services Commission and not on the advice of any government, military or otherwise. Sustained and virulent personal attacks upon several individual judges of the High Court had clearly not deflected them from their judicial oaths, their duties and their endless work in delivering a fair and functioning judicial system. A fair and functioning legal system can substantially alleviate the situation of a people who aspire to democratic rule in times of instability (see paras [167]-[170], below). Dicta of Viscount Simonds in A-G of the Commonwealth of Australia v R [1957] HCA 12; (1957) 95 CLR 529 at 540 applied.

[Editors' note: Sections 2-3, 60, 85-87, 96, 98, 109 of the Constitution of Fiji 1997, so far as material, are set out at pp 674-678, below. Sections 120 and 187 of the Constitution are set out at pp 673 and 691-692, below]

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Woodstock Homes (Fiji Ltd) v Sashi Kant Rajesh [2008] FJCA 104, Fiji CA
X's Petition of Right, Re [1915] 3 KB 649, UK CA
Yabaki v President [2003] FJCA 3, Fiji CA; affg [2001] FJHC 119, Fiji HC
Youngstown Sheet and Tube v Sawyer [1952] USSC 74; (1925) 343 US 579, US SC

Legislation referred to in judgments

Australia
Constitution of the Commonwealth of Australia 1900, ss 61, 64

Canada
Manitoba Act 1870

Fiji
Act No 5 of 1998
Act to alter the Constitution of the Sovereign Democratic Republic of Fiji Act 1997
Constitution of Fiji 1990, s 163
Constitution of Fiji 1997, preamble, ss 1-3, 6-20, 23-24, 29(3), 30-34, 37, 40, 46(2), 49-63, 71(1)(a), 85-87, 90-91, 93, 96-99, 103(2), 104, 105-109, 115-116, 118, 120(2), 131, 149, 185, 187, 194(2)(b), (10)
Electoral Act 1998, Pt 2
Fiji Independence Order 1970
Fijian Affairs Act
Human Rights Commission Act 1999, s 37(2)
Public Emergency Regulations
Public Safety Act (Cap 19)
Rules of Court, Ord 4, r 2, Ord 34, r 2(4)

India
Government of India Act 1915, s 72

South Africa
Constitution of the Republic of South Africa 1993 (interim Constitution)
Constitution of the Republic of South Africa 1996, ss 2, 83, 85

United Kingdom
Bill of Rights (1688)
Magna Carta

United States
Constitution of the United States 1787, art.1

Other sources referred to in judgments

Advisory Committee to the Constitutional Commission Executive Government (1987) p 42
Barwick Sir John did his Duty (1983)
Blackstone 1 Commentaries (8th edn, 1778) p 252
Cecil Melbourne (1966) pp 266-267
Chitty A treatise on the law of the prerogatives of the crown and the relative duties and rights of the subject (1820) p 365
Constitution Abrogation Decree 1987
Constitution of the Sovereign Democratic Republic of Fiji (Promulgation) Decree 1990
Cooray Conventions, The Australian Constitution and the Future (1979), p 51
De Legebus 111 iii 8
Declaration of a State of Emergency, 6 December 2006, Fiji Gazette, vol 1, No 2
Decrees No 1, 3, 10, 18 of 2000
Deed of Cession (10 October 1874)
Dicey Introduction to the study of the law of the constitution (10th edn, 1961), pp 424,432
Evatt The King and his dominion governors: a study of the reserve powers of the Crown in Great Britain and the Dominions (1st edn 1936; 2nd edn, 1967), pp 102-107,286
Evatt The Royal Prerogative (1987), pp 29-31, 46--47, 254-256
Final Report of the Constitutional Commission (1998), vol 1, 2.214-2.224
India Bill 1874
Interim Civilian Government (Transfer of Executive Authority) Decree No 19 of 2000
Joseph Constitutional and Administrative Law in New Zealand (3rd edn, 2007), pp 617, 676.
Judicature Decree No 22 of 2000
Land Tribunal Bill
Locke The End of Civil Government (1689)
O'Connell 'The Dissolution of the Australian Parliament' (1976) The Parliamentarian pp 1-14
Qoliqoli Bill
Quentin Baxter 'The Governor-General's Constitutional Discretions: an essay towards a re-definition' (1980) 10 VUWLR 293
Quick and Garran Annotated Constitution of the Australian Commonwealth (1901), pp 322-323
Ratification and Validation of the Declaration and Decrees of the Fiji Military Government Decree 2007 (16 January 2007), Fiji Government Gazette, vol 7, No 4
Reconciliation Tolerance and Unity Bill
Shakespeare Henry IV (Part 2) 111 i 30
The Fiji Islands: Towards a United Future, Report of the Fiji Constitution Review Commission 1996. Reeves, Vakatora & Lal (Parliament of Fiji, Parliamentary Paper No. 34 of 1996) ('the Reeves Report'), paras [5.41], [12.13], Recommendations 664, 666
Twomey The Constitution of New South Wales (2004), pp 645-646
Wade and Phillips Constitutional and Administrative haw (9th: edn, 1977), p 89

Application

The plaintiffs, Laisenia Qarase, Ratu Naiqama Lalabalavu, Ro Teimumu Kepa, Ratu Suliano Matanitobua and Joseva Vosanibola, brought proceeding: against the defendants, Josaia Voreqe Bainimarama (Commander of the Republic of Fiji Military Forces), the Republic of Fiji Military Forces, the State of the Republic of The Fiji Islands and the Attorney General of the interim regime, seeking declarations, inter alia, that the removal of the Prime Minister, Cabinet and ministers by force of arms was unconstitutional and unlawful. The Fiji Human Rights Commission and Citizens' Constitutional Forum Ltd were amici curiae. The facts are set out in the judgment of the court.

N Perram SC, R A Pepper and Tevita Fa for the plaintiffs/ appellants.
Gerard McCoy QC, Christopher Pryde (Solicitor General) and Steven Kwan for the first, second and fourth defendants.
G 0'L Reynolds QC and Dr B R Kremer for the third defendant.
Dr Shaista Shameem and S Colavanua as amici curiae.

9 October 2008. The following judgment of the court was delivered.

GATES Ag CJ, BYRNE and PATHIK JJ.

INTRODUCTION

[1] This case is about the lawfulness or otherwise of certain acts carried out by the President following military intervention in the government of the state. The defendants maintain that the President retained prerogative powers which enabled him to act in an emergency for the public good. They say those powers enabled him to ratify the acts of the military in the takeover and ultimately in consequence absolving the participants of unlawfulness. But did such powers allow him to act without specific authority of the Constitution? Were his powers, as the plaintiffs argue, circumscribed within the confines of the Constitution with regard to the dismissal of the Prime Minister and his Cabinet and the dissolution of Parliament? Were those powers further confined by the common law by the requisite conditions set out in Republic of Fiji v Prasad [2001] 2 LRC 743?

[2] In the course of the present case, the parties had pleaded and ventilated the issue of executive privilege or public interest immunity. Interest in this issue faded, however, and played a less significant part in closing submissions. In its stead the pivotal question posed to the court for answer was how far the courts could subject the President's conduct to judicial review. Though there was variance in the submissions as to the extent or scope of the President's powers, it was generally accepted that the president did possess some reserve powers to act in a crisis. The plaintiffs argued that the five requirements of Prasad went to the existence of those powers as well as to the extent of their exercise. In effect, the powers could only arise in a Prasad-like state of affairs. The plaintiffs went further and argued that there was no necessity and there should have been an immediate return to the pre-5 December 2006 situation, as if the coup had not occurred at all.

[3] In Prasad [2001] 2 LRC 743 at 760-761 the Court of Appeal had adopted the formulation of the necessity doctrine from the judgment of Haynes P in Mitchell v DPP [1986] LRC (Const) 35 at 88-89 in the Court of Appeal of Grenada:

'I would lay down the requisite conditions to be that: (i) an imperative necessity must arise because of the existence of exceptional circumstances not provided for in the Constitution, for immediate action to be taken to protect or preserve some vital function to the State; (ii) there must be no other course of action reasonably available; (iii) any such action must be reasonably necessary in the interest of peace, order, and good government; but it must not do more than is necessary or legislate beyond that; (iv) it must not impair the just rights of citizens under the Constitution; (v) it must not be one the sole effect and intention of which is to consolidate or strengthen the revolution as such.'

[4] The defendants argued that the President exercised plenary powers well and long recognised by the common law. These reserve powers were not products of Prasad-like necessity. They would only be available to a head of state, a sovereign or a monarch. They could not be exercised and excused if carried out by a private citizen: Burmah Oil Co (Burmah Trading) Ltd v Lord Advocate [1964] UKHL 6; [1964] 2 All ER 348 at 377-378 per Lord Hodson. The President's prerogative powers, or ultimate reserve powers, derived from presidential succession to those of former imperial sovereignty.

[5] When this case came to trial application was made to the court for the proceedings to be covered by television for re-broadcast on a daily basis. The court, unusually, allowed the coverage. The compelling reason for doing so was to enable the public to understand what this case was about and so as to avoid misinformation and misunderstanding on the nature of the dispute laid before the court.

[6] Courts do not make pronouncements on matters of current national interest as the moment takes them. The courts must await the filing of cases in which litigants in pleadings set out the areas in dispute, where specific declarations are sought or issues litigated, and where live questions are posed for answer. In this case, as shall be seen later, the nature of the respective cases and the relevant issues appeared to shift. This much would have been apparent to the ardent observer of the trial proceedings.

[7] It is important to mark at the outset that the court has not been asked to canvass the validity of any possible reasons which might excuse the military takeover. In his opening remarks Mr McCoy QC conceded the court was not concerned with whether there was moral, military or philosophical imperative for such action. Nor has the doctrine of necessity for a coup d'etat figured as a matter of dispute between the parties. Evidence and argument has not been directed to prove that issue. The court has not been asked to approve the acts of the military in taking over the executive, in removing the Prime Minister and the Cabinet or in ordering the dissolution of Parliament. These were not the matters litigated in this case. Instead the parties wished to have an answer to the question as to whether the President could act in the crisis of December 2006 and January 2007 in the way that he did. An examination of the surrounding and preceding factual circumstances which confronted the President is therefore relevant to a formulation of this answer.

[8] Fiji does not have a separate Constitutional Court for matters of this kind. Original jurisdiction is granted instead by the Constitution to the High Court ‘in matters arising under the Constitution or involving its interpretation’ [Constitution of Fiji 1997, s 120(2)]. The gravity of this issue has compelled this court to constitute itself as a Bench of three judges, as was done in an earlier constitutional matter which went on to the Privy Council: A-G of Fiji v DPP [1983] 2 AC 672. However, as can be seen from the opinions of the Board, their Lordships throughout in that case were concerned with far less grave issues than those placed before this court.

HISTORY FO THE PROCEEDINGS

[9] On 20 February 2007 the plaintiffs filed an originating summons seeking from the court 12 declarations, chief of which was that the removal of the Prime Minister, Cabinet and ministers by force of arms was unconstitutional and unlawful. Another declaration sought was that the usurpation of executive authority was similarly unconstitutional and unlawful.

[10] The matter was called in court first on 2 March 2007. Mr Fa asked for a speedy trial, and sought a minor amendment to the summons. The case was adjourned to 30 March 2007 to allow for the affidavit of Mr Qarase to be properly sworn and for a supplementary affidavit to be prepared.

[11] On 30 March 2007 upon application the media were allowed to make their own tape recording of the proceedings at the interlocutory stage. Further time was allowed to Mr Fa to file what were to be two supplementary affidavits. Mr Fa mentioned difficulties with his client attending court.

[12] On the next mention, 11 April 2007, Mr Pryde (Solicitor General), appearing for the first, second and fourth defendants, sought time to consider his clients' position on the affidavit of Mr Qarase. He foreshadowed an application to strike out the action. Mr Fa said he was also preparing certain papers. The court asked that preparation of affidavits by the defence continue whilst the plaintiffs' papers were still being finalised.

[13] On 24 April 2007 the court was informed an interlocutory motion had been filed by the defendants though not yet served on the plaintiffs. The motion sought that the proceedings should be continued by writ, not originating summons, on the ground that the facts were substantially in dispute. It also sought the striking out of material in the affidavits of the plaintiffs as either irrelevant or inadmissible. It claimed that the reliefs claimed were too broad. The court ordered affidavits in reply and set the hearing of the interlocutory motion to 11 June 2007.

[14] There remained difficulty in achieving the attendance of Mr Qarase at court. Mr Pryde said the Emergency Regulations had been lifted and no order was necessary. The court expressed concern at delay being caused by any impediment, and decided upon an order against all defendants from which the state and the Attorney General were subsequently absolved. In making the order the court said:

'[2] Unfortunately in Fiji it seems to happen too often that when a restraint is lifted, the application of the restraint is continued by officers who have not been informed of the lifting or for other reasons of caution or zealousness ...

[4] I also express the hope that access to justice, and the right of the litigant to attend his case will be accorded to Mr Qarase without the need for any further court intervention. Such an order will also assist in the disposal of this case.'

[15] On 22 June 2007 the court decided the motion by permitting the continuance of proceedings by originating summons, and allowed the plaintiffs to amend their summons in order to narrow the scope of the court's focus. The court concluded (Ruling No 2, para [12]):

'The tension for the court lies on the one hand, in allowing relevant and fair ventilation of the issues and facts necessary for the decision, and on the other, in keeping the case within timely and manageable proportions for the litigants and for the justice system.'

[16] The court ordered that the parties were to decide which witnesses who had made affidavits were to be made available for cross-examination. No orders 'were made to exclude parts of the affidavits filed which contained clearly irrelevant and inadmissible material. The court took the same approach to such material as it had at first instance in Prasad v Republic of Fiji [2001] 1 LRC 665 al 672-674, which was to 'overlook defects in the papers, which are largely minor, in the greater interests of the justice of the matter'.

[17] After Ruling No 2 was delivered, counsel and the court in chambers arrived at a timetable for the case thereafter. In that timetable a pre-trial conference was fixed for 11 September 2007 at which it was necessary for overseas counsel who were to conduct the trial to be present. The trial was fixed for 2 October 2007. Other interlocutory matters were to be fitted in beforehand.

[18] On the day fixed for pre-trial conference, save senior counsel for the plaintiffs, all counsel attended. Time was extended for the plaintiffs to file affidavits in reply to those of the defendants. This was partially because of further time having to be allowed to the defendants to file their affidavits which were eventually contained in 11 lever arch files.

[19] The plaintiffs wished to postpone the pre-trial conference till later in the month. The court declined this request (Ruling No 3, para [5]). Instead, counsel were urged to be in communication with each other to narrow down the contentious issues. The court stated:

'In a case of this dimension, it is essential that counsel seek to present to the court for determination only those matters which are the true core of their respective cases.'

[20] The plaintiffs sought to postpone the trial also. This was declined on the ground no good reason was given for the postponement. Orders were given for counsel to notify their opponents by certain dates as to which witnesses were required for cross-examination.

[21] Upon application, the court allowed the Attorney General's later originating summons (Action No HBC398.07S) to be consolidated with the plaintiffs' summons (HBC60.07S) (Order 4, r 2). Most of the declarations sought were interrelated with the main issues in the original proceedings. The court was anxious that the parties bring forward the contentious and central issues of the 5 December intervention so that the court could deal with them all at one time.

[22] In the same ruling (Ruling No 3, 12 September 2007) the court declined to allow the Proceedings Commissioner of the Fiji Human Rights Commission to intervene pursuant to s37(2) of the Human Rights Commission Act 1999. Instead the court invited the Proceedings Commissioner, Dr Shaista Shameem, to make submissions and to assist the court as amicus curiae. Earlier, at the time when the invitation had been extended to the Fiji Human Rights Commission, a similar invitation had been extended to the Fiji Law Society. The society did not take up the court's invitation.

[23] There were three summonses to strike out. Mr McCoy and Mr Fa both conceded that proceeding by way of interlocutory summons was not a realistic way in which to have the extent of residual presidential powers considered and decided. Accordingly first Mr McCoy and then Mr Fa withdrew their respective summons.

[24] On 1 October 2007 the plaintiffs sought to postpone the trial fixed for 2 October 2007. Overseas counsel for the other parties were already present in Fiji. The reason given by the plaintiffs was a last minute change of counsel. The date of trial had been settled with counsel and a date of commencement fixed as far back as 22 June 2007, some three months earlier. It appeared that eminent senior counsel had not been properly and definitely engaged. The engagement of senior counsel had been handled by another law firm, QB Bale and Associates. The court concluded counsel had neither been engaged nor briefed for the trial.

[25] The court was placed in an unnecessary difficulty, but considered it could not simply put off the trial. The trial was postponed by two days, however, to allow the plaintiffs some indulgence (Ruling No 4, 2 October 2007).

[26] Mr. Perram SC then appeared for the plaintiffs. He opened his case. The court allowed further indulgence to the parties and time for senior counsel to narrow down the issues and to agree facts. By consent a statement of claim was directed to be filed and served. The document produced, which was not filed, revealed a remarkably different case than that shown by the original papers. Counsel for the defendants protested. They said it contained material allegations of fact not referred to in Mr Perram's opening.

[27] It appeared that the legal basis of the plaintiffs' claim had not been worked out. This was not Mr Perram's fault, but rather those who in reality had carriage of the plaintiffs' case. The court observed (Ruling No 5, 11 October 2007):
17

'[9] It is not appropriate at this late stage when the trial has already commenced and the case opened, for the plaintiffs to seek to alter the allegations made against the other side in a major way. The courts must insist on fairness, a concept naturally related to orderliness. Knowing in a timely way what is the nature and extent of the complaint made against you, is a cornerstone of our system of justice. The enormity and gravity of the issues demand also that the judges of the court be given more orderly and measured assistance than results from this manner of proceeding.'

[28] Reluctantly the trial had to be postponed again and a fresh timetable arranged. The trial was re-fixed for 4 March 2008. Meanwhile the defendants moved for a separate trial on the justiciability issue. The court accepted this raised a threshold point Mbasogo v Logo Ltd [2006] EWCA Civ 1370, [2007] QB 846 - but declined to order a separate trial.

[29] When the court convened on 4 March 2008 for the commencement of the trial there was difficulty in Mr McCoy QC for the first, second and fourth defendants being present because of a Hong Kong Court of Appeal matter unexpectedly brought on. The court declined the application for postponement. However, the court insisted on a list of agreed issues for determination pursuant to Ord 34, r 2(4) and a list of witnesses to be tendered (Ruling No 7, 4 March 2008).

[30] The trial then proceeded between 5-20 March 2008.

BACKGROUND FACTS

[31] The court was not presented with a set of agreed facts. The facts were to be gathered from a bundle of documents jointly tendered by the defendants without objection and from those factual circumstances not in dispute which can be considered notorious or from documents which are matters of public record. Many of these were mentioned in the plaintiffs' amended statement of claim and not disputed in the statements of defence. Two witnesses for the plaintiffs gave evidence or at least were tendered for a cross-examination and some exhibits and affidavits were tendered through them. The voluminous sets of affidavits of other witnesses filed were not tendered and did not form part of the evidence for consideration.

[32] On 17 March 2006 the incumbent President, Ratu Josefa Iloilovatu Uluivuda, was re-appointed for a further term of 5 years as President of Fiji. His Excellency's appointment was made in conformity with s90 of the Constitution. Throughout the circumstances of this case the President remained constitutionally in office.

[33] Following a general election in May 2006 the plaintiff Mr Qarase was re-elected to Parliament and was re-appointed as Prime Minister. He led a government comprising 36 members of his own party, the SDL, and two independent members, thereby commanding the confidence of the House of Representatives, with a majority of 38 members in a 71-seat House.

[34] For the previous 18 months or so onwards prior to 5 December 2006 the military and the government of the day were descending into a relationship of increasing ill-will and conflict. Matters grew worse following the formation of the new government in May 2006. Public and private exchanges between the Commander of the Republic of Fiji Military Forces ('the RFMF'), on the one hand, and the Prime Minister, on the other, were both hostile and acrimonious.

[35] In late October 2006 the RFMF issued a confidential paper with a series of requests to the government of Mr Qarase.

[36] In the paper the RFMF requested a 'public declaration by the government that the events of 2000 were illegal'. There had been a civilian coup in Fiji in 2000. The military wanted the Ministry of Reconciliation to undertake an education programme to inform the public of this fact, and the removal from public office of all those who were involved and implicated. It wanted this education so that the people would respect the rule of law and understand the standard of leadership required of future leaders.

[37] The army wanted the withdrawal of three Bills, the Reconciliation Tolerance and Unity Bill, the Qoliqoli Bill and the Land Tribunal Bill. It stated the Bills were unconstitutional, controversial and extremist in nature, and would 'not bring forth peace and stability that we seek as a young nation'. It was said the Bill had the potential to create conflicts in the indigenous race. The Bills were 'deviously constructed to capture the minds of the Fijians that it is ideal for them. In reality, it is a quest to buy votes for political expediency and supremacy'.

[38] It wanted the investigation against the Commander completely withdrawn. The investigations by the Commissioner of Police were viewed as an attempt to weaken the institution, and continuation of the 19 May 2000 plot by rebels in turn continued by the SDL government.

[39] It sought the termination of the contract of the Commissioner of Police, Mr Andrew Hughes. It claimed Mr Hughes had compromised his position under political pressure. Foreign influences had been at work:

'His office is no longer neutral and impartial in handling state affairs. Hughes unfortunately played a part ... in the strategic plan to remove the Commander RFMF in his absence.'

[40] It alleged that Hughes was –

'the front of the Australian government in its ground strategy of neo-colonialism weakening the RFMF and [had] the potential to cause instability in Fiji.'

The RFMF sought his immediate removal, so as to restore trust and co-operation between the RFMF and the police.

[41] It sought reconsideration of the arming of the Police Tactical Response Unit. This was considered an unhealthy development where rules of engagement would not be clear. It was stated this was another instance of foreign influence, along with Australian police uniforms, all said to be part of the Australian strategy of total domination over the country.

[42] The army said there was to be no foreign military or police intervention, and pointed out that it was a clear violation of independence and sovereignty. The RFMF was intact and strong. The Foreign Ministers' statement adopting the Biketawa Declaration was an option neither advised nor acceptable. It was rather a catalyst to instability.

[43] The RFMF sought the removal of the commercial arm of the Native Land Trust Board. The NLTB must focus on its core functions and secure the medium and long-term stability of land leases.

[44] There were long-standing issues the RFMF had with the Ministry of Home Affairs which were neither responded to nor addressed. These concerned force structure, non-payment of allowances, ration allowances, promotions and, the development of operational relationships with other forces.

[45] Finally, the RFMF stated that the greatest threat to Fiji's national and economic security was lack of good governance under the present cloak of democracy. It was quite wrong to blame long-standing economic woes on the military's stand-off with government:

'Under that cloak, corruption and abuse of office, economic downturn and uncontrolled debts, foreign influence and discriminatory policies are becoming the order of the day. These have slowly destroyed the nation and enslaved the people and the country to a poor state.'

[46] On Friday 27 October 2006 the Prime Minister indicated the government would not resign. On 3 November 2006 the Commissioner of Police announced that the Commander would be investigated for sedition.

[47] Efforts were made through the Great Council of Chiefs to try to resolve the impasse. A meeting was also organised to take place in Wellington, New Zealand on 29 November 2006 between the Prime Minister and the Commander. They met as arranged. On Saturday 2 December 2006 a meeting took place in Suva between the President, the Vice-President and the Commander, and later between the Vice-President and the Prime Minister. Meanwhile on the same day foreign ministers of the Pacific Islands Forum met in Sydney.

[48] In the early evening of Monday, 4 December 2006 the Prime Minister came by car to attend the President. Eventually he came away from the front gates of Government House without seeing him. On the Prime Minister's view he was treated discourteously by the soldiers on duty.

[49] By the morning of Tuesday 5 December 2006 the RFMF had taken control of the streets of Suva. The Commander assumed executive authority of the state. Later that evening an Extraordinary Fiji Gazette notice was issued in which the Commander stated:

'At approximately 1800 hours tonight Tuesday 5th December 2006 I have with much reluctance assumed executive authority of the country and henceforth declared a state of Emergency.'

[50] The Gazette notice stated:

'The primary objective of the Interim Military government is to take the country towards good governance, rid us of corruption and bad practices and at the same time provide the well-being of Fiji and its people at the earliest possible opportunity.'

The normal day-to-day affairs of the country were to continue as usual.

[51] On the same evening the Commander gave an address to the nation concerning the Public Declaration of Military Takeover. This was put in evidence by the plaintiff. In it he referred to the deteriorating state of Fiji and, that the government was 'unable to make decisions to [save] our people from destruction'.

[52] He explained about the security situation, the checkpoints, patrols and that police and army would work together to ensure everybody's security. He went on to refer to the government ministers and said:

'All the Ministers from the last government have been given as from tomorrow one month to vacate their government quarters and return all government property in their possession. They will be paid a severance pay of one month's pay. There is no intention on the Military to arrest these Ministers. We only ask that they live their daily lives and not interfere in the process that is now taking place.'

[53] He said:

'RFMF over the years have been raising security concerns with the government, in particular the introduction of controversial Bills, and policies that have divided the nation now and will have very serious consequences to our future generations.'

[54] He continued:

'These concerns have been conveyed to the Prime Minister in all fairness and sincerity with the country's interest at heart. Apparently, all RFMF concerns were never accepted with true spirit. All my efforts to the government were to no avail. Instead, they turned their attention on the RFMF itself. Despite my advice, they tried to remove me and create dissension within the ranks of the RFMF; the institution that stood up and redirected the Nation from the path of doom that the Nation was being led to in 2000. Qarase has already conducted a "silent coup" through bribery, corruption and introduction of controversial Bills.'

[55] He said it was clear to him that the 'government has no intention of solving this crisis'. On his visits to the President over the preceding days His Excellency had expressed concern over the crisis point reached. The Commander referred to presidential powers to dismiss a Prime Minister under s109(1) of the Constitution in the President's own judgment, should exceptional circumstances exist. He then said he was stepping into the President's shoes since His Excellency appeared to have been blocked from exercising his constitutional powers by those surrounding him or who were putting undue pressure on him.

[56] He explained:

'This is indeed an unusual and exceptional situation, which was not envisaged by the framers of the Constitution and which requires special steps to preserve the Constitution and maintain the integrity of the Nation-state of Fiji.'

[57] He stated he would now dismiss the Prime Minister and appoint Dr Jona Baravilala Senilagakali as the caretaker Prime Minister to advise the dissolution of Parliament:

'Following the dissolution of Parliament ... an announcement will be made regarding the formation of a caretaker or interim Government to steer Fiji. After a proper census and electoral system is in place the caretaker Government will facilitate democratic national elections as provided for under our Constitution.'

[58] He said the takeover would not be permanent:

'When the country is stable and the Electoral Rolls and other machineries of Elections have been properly reviewed and amended, elections will be held. We trust that the new government will lead us into peace and prosperity and mend the ever widening racial divide that currently besets our multicultural nation.'

[59] Before concluding he gave an assurance that the rights of all citizens of Fiji were protected and that they would respect the international Conventions on human rights and humanitarian law. He added:

'I plead to the international community to first learn and understand the situation here in Fiji before you take action.'

[60] Mr Senilagakali duly signed an advice to the President for dissolution of Parliament on 6 December 2006. The self-proclaimed President, Commodore Bainimarama, acknowledged the advice and gave the order for dissolution.

[61] In his pleadings Mr Qarase stated: 'The next morning the Prime Minister escaped from Suva...' The defendants claim he left Suva that day, 6 December 2006, only to return to Suva on 4 October 2007. In his evidence Mr Qarase said he returned on 1 September 2007.

[62] On 22 December 2006 the Bose Levu Vakaturaga, or Great Council of Chiefs, met in Suva and issued a statement. The Great Council has no parliamentary functions. But in addition to its Fijian Affairs Act functions the Great Council, under s90 of the Constitution, following consultation with the Prime Minister, is the appointing body for the office of President, Fiji's head of state.

[63] In its statement it advised the President-

'to continue to personally exercise executive authority in accordance with the Constitution of the Republic of the Fiji Islands in his official capacity.'

[64] The Great Council recognised that in view of the action of the military the government of Mr Qarase had been rendered ineffective and incapable of discharging its constitutional responsibilities. It said:

'In the circumstances, there being no other viable alternative, the GCC regretfully advises the Prime Minister, Laisenia Qarase, to tender his resignation to the President, Ratu Josefa Iloilo Uluivuda.'

[65] The Great Council recommended the President 'being the repository of executive authority’ to appoint an interim administration and to return Fiji to early elections within a stipulated time frame. It wanted the key stakeholders to enter urgent discussions in good faith to work constructively towards finding a legal solution to restore democracy. It urged negotiations with a view to an accord to facilitate the resignation of the legal government and for a road map to take Fiji forward.

[66] The crucial premise it referred to was 'the need to protect and preserve the public interest'. It made recommendations for the appointment of an Interim Government of National Unity and a Privy Council, and foreshadowed the passing of necessary decrees.

[67] The Great Council urged the government to prepare an appropriate and fair formula for compensating all MPs who were members of both Houses of Parliament. It suggested a commission of inquiry to investigate credible allegations of corruption and a working party 'to review the elements that contributed to the current political crisis'.

[68] On 4 January 2007 Mr Senilagakali tendered his resignation as caretaker Prime Minister to the Commander. In the afternoon of the same day the Commander purported to hand back executive power to the President and made the following address to the nation:

'Fellow citizens Following the Republic of Fiji Military Forces intervention in our country's government, Executive and public institutions and my stepping into the shoes of the President Tui Vuda Ratu Josefa Iloilo I now return all executive authority to His Excellency. As I stated on 5 December 2006 the actions of the RFMF were precipitated by the impasse between the SDL government and the RFMF. The RFMF throughout this impasse had wanted to resolve the matter constitutionally, legally and expeditiously. The RFMF's assumption of executive authority, through its Commander was predicated and supported in law. The Akuila Yabaki case had established through justice Scott's ruling that the President had certain reserve powers under s109(1) of the Constitution. In addition to this ruling Justice Scott also held that in some unusual or extreme situations a departure from the normal requirements of the Constitution is permitted. This departure or extra-constitutional steps are justified under the doctrine of necessity. Strictly speaking the decision of Justice Scott has not been overturned and therefore is binding and valid law. Given the circumstances prevailing at that time I had exercised those extra-constitutional steps. Notwithstanding the legal ability to carry out what I as Commander and the RFMF did, this course of action was undertaken with great reluctance but it was necessary to steer our beloved nation into peace, stability, a just solution and to above all preserve our Constitution. It was also essential to maintain the sovereignty and territorial integrity of the nation-state of Fiji. I would like to now set out some of the key reasons and issues that created and led to the impasse:

1. The persistent and deliberate involvement of persons supporting the unlawful takeover of government in 2000 in the Qarase-led SDL government. This includes the governments after the 2001 and 2006 Elections;

2. The double-speak of the SDL government. On the one hand saying that they supported the law but on the other freeing or facilitating the freeing of coup convicts on extra-mural and/or compulsory supervision orders with unsubstantial reasoning. These actions made a mockery of our justice system and fundamentally undermined the integrity of our judiciary and the rule of law;

3. The continued appointment of those tainted by the events of 2000 to diplomatic and senior government positions;

4. The failure of the Police Force to investigate all the "shadowy figures" behind the 2000 coup including Qarase who had requested me to remove the President. Despite this request the Police Force were determined to instead investigate me, my officers and the RFMF as a whole;

5. The politicization of the Prison services;

6. The regular visits by government officials to Korovou to Prison to meet prisoners who supported the illegal takeover in 2000 and the mutiny. Some of these prisoners are accorded special treatment in prison and referred to as "cultural advisors" to the prisoners;

7. The racist and inciteful speeches made by SDL parliamentarians which were never checked by Qarase. These speeches caused fear and tension in minority communities and our society as a whole. We also noted with concern the increased incidents of sacrilege aimed at minorities;

8. The repeated acts and incidents of government and civil service corruption including SDL politicians. Those involved continued to be members of the Cabinet, those holding senior government positions and civil servants;

9. The growing cycle of corruption, clientalism and cronyism also involved the extremely unhealthy influence and involvement of certain businessmen and women in the governmental decision-making processes;

10. The failure of the Qarase government to pass any anti-corruption legislation in the past 5 years despite the growing and repeated acts of corruption which has undermined the very foundations of our civil service and institutions and the economy;

11. The determination by the Qarase-led government to pass acts of parliament which would have inevitably increased indigenous Fijian nationalism, led to dispute between provinces, indigenous Fijians themselves, created ethnic tension, undermined the rule of law and the independence of our constitutional offices including the judiciary and compromised the right to fair hearing and representation. I refer in particular to the Reconciliation, Qoliqoli and Land Claims Tribunal Bills;

12. The exclusion of the RFMF from the National Security Council but repeated inclusion of the Police Force which indicated a refusal to hear the Military point of view on security and governance issues;

13. The manipulation of the criminal justice system for political reasons. The investigations against me and the RFMF arose from a National Security Council decision and not from the independent decision of the Commissioner of Police himself;

14. The threat of and references to the use of regional, forces and intervention by the Qarase government to try and influence the resolution of our own internal problems;

15. The threat of an Australian invasion as shown by the inciteful and hostile remarks made by Alexander Downer, the unexplained presence of an Australian Defense Force Helicopter within Fiji's EEZ and the frequent references to the Biketawa declaration made this threat a real one. Recent revelations confirm this position;

16. The consideration of foreign intervention was viewed to be a serious threat to Fiji's sovereignty and independence. It will always be resisted. Under s104 of the Constitution the Prime Minister is to keep the President informed generally about issues relating to the governance of Fiji. He was never informed of this foreign presence;

17. On the Biketawa declaration itself, the declaration states that the government:

-Needs to be committed to good governance exercising authority in a manner that is open, transparent, accountable, participatory, consultative and decisive but fair and equitable;

-Ensure equal rights for all citizens regardless of gender, race, colour, creed or political belief, and,

-Must uphold the democratic processes and institutions which reflect national and local circumstances, including the rule of law and the independence of the judiciary, just and honest government. The Qarase government had failed to adhere to many of these agreed principles of governance;

18. The repeated and persistent attempts to change the command structure at the RFMF since 2000 and the rewarding of those who had made those attempts;

19. Most seriously, the large government deficit, the failure of the SDI government to cut spending, the failure to revive the sugar industry, the failure to solve the land problem, the racist and selective education polices, the rapidly deteriorating public health services, the escalating poverty, the hike in interest rates, the lack of employment opportunities given the growing number of school leavers, the almost inevitable devaluation of the Fiji dollar, the neglect to increase our exports vis-a-vis our growing reliance on imports creating a critical balance of payments situation and the overall serious economic situation created by bad governance, mismanagement, corruption, disrespect for the rule of law and the undermining of democratic values since 2000;

20. The manner in which the 2006 elections were conducted was characterized with discrepancies, The fact that no census was conducted before the elections meant that serious breaches of the Constitution occurred, the fact that there were so many additional ballot papers printed for no good reason and the fact that unexplained procedures were adopted;

21. The fleeing from Suva of the Prime Minister and his Cabinet and although it was only for a couple of days instilled a lack of confidence in the government and negated claims that the government was in fact in charge;

22. The untimely absence of leave of the Commissioner of Police at a crucial juncture in our country and his seemingly political bias was of grave concern;

23. Qarase and certain members of his Cabinet sought to incite certain members of our community to rebel against the RFMF and thereby did not have regard for the welfare and security of all our citizens and compromised national security;

24. On the morning of 5 December the President asked Qarase to come and see him and he refused to do so simply because he was fearful that the President would have asked him to resign or dismissed him. Clearly Qarase as Prime Minister abdicated his responsibilities by refusing to listen to the President who is the head of the state;

25. The President was prevented by some including the Vice president from exercising his constitutional powers. We were as a nation in a state of limbo.

These events and circumstances ladies and gentlemen demonstrate that the actions and inactions of the SDL government and the circumstances that they had created undermined the core values and the very spirit of democracy, constitutionalism, the rule of law, a fair, equitable, just and non-corrupt government and society. The RFMF as stated previously believes in the rule of law and has and shall adhere to the Constitution. Indeed it not only adheres to the rule of law and the Constitution but more importantly believes in the adherence to the spirit of the law and the Constitution. I would like to thank my officers and all members of the RFMF who have shown true leadership, fortitude and determination. They have sacrificed much to safeguard our nation and our Constitution. They have been a source of strength and resolve. I would also like to thank all citizens of this beloved country of ours who have remained calm and dealt with the circumstances with fortitude. They have indeed shown us tremendous support and provided much strength. I thank b Dr Jona Senilagakali who was appointed as caretaker Prime Minister at a time when it was probably not popular to do so. He has this morning tendered in his resignation. I would like to thank the Tui Vuda who has been tremendously supportive of our actions and continues to support us. We trust his wisdom and believe that he will exercise his Executive Power with resolve. Given the legal, constitutional and indeed defensible basis of our necessary actions I appeal to all our citizens including the now former Prime Minister Qarase, our neighbors and the international community, to support and work together for the betterment of our beloved nation and its people. I now hand over executive authority to the President. God bless Fiji.'

[69] The President subsequently addressed the nation and said:

'Good Citizens of our beloved Fiji Islands. I know that the events of the past few weeks have been trying on all of us. In particular in early December we were at cross roads in which hard and decisive decisions needed to be made. I was, as has been noted by the Commandeer of the Republic of Fiji Military Forces, unable to fully perform my duties as I was prevented from doing so. I do not wish to elaborate further on this point but I can state that they were predominantly cultural. In any case, given the circumstances I would have done exactly what the Commander of the RFMF, Commodore Josaia Voreqe Bainimarama, did since it was necessary to do so at that time. These actions were also valid in law. Therefore, I fully endorse the actions of the Commander of the RFMF and the RFMF in acting in the interest of the nation and most importantly in upholding the Constitution. I thank him and his men and women for having the courage to step in. I also thank him and the RFMF for handing back all the executive powers. I thank the civil service, the Police, the judiciary and other governmental institutions in remaining faithfully at their posts. I thank the good citizens of this beloved country of ours who have gone about their ordinary business. It is now necessary to move on, look ahead and to take steps to enforce a genuine democracy. Look forward to working with the overseas governments, international organizations and our regional neighbours and appeal to them all to recognize our need to find a Fiji-based solution while upholding the Constitution. I will therefore, shortly after consultation with capable people, announce an Interim government to take us smoothly to the next elections. The mandate of the Interim government will be as follows:

• To continue to uphold the Constitution;

• Where necessary facilitate all legal protection and immunity, both criminal and civil, to the Commander, Officers and all members of the RFMF;

• Give effect to the actions of the RFMF including the respective suspensions, dismissals and temporary removal from office of civil servants, Chief Executive Officer's, those appointed by the Judicial Services and Constitutional Services Commissions, the Judiciary and government-appointed Board members;

• Steady our economy through sustained economic growth and correct the economic mismanagement of the past six years;

• Lift up the living standards of the growing poor and underprivileged of our country;

• Restructure the Native Land Trust Board to ensure more benefits flow to the ordinary indigenous Fijians;

• Eradicate systemic corruption by including the setting up of an Anti-Corruption Unit through the Attorney General's Office and set new standards of governmental and institutional transparency;

• Improve our relations with our neighbours and the international community;

• Take our country to democratic elections after an advanced electoral office and systems are in place and the political and economic conditions are conducive to the holding of such elections;

• Immediately as practicable introduce a Code of Conduct and Freedom of Information provisions; and

• Give paramountcy to national security and territorial integrity of Fiji. I thank each and every one of you for your patience and forbearing. I urge all to strive for a better Fiji. God bless Fiji.'

[70] On 5 January 2007 the President appointed the Commander as interim Prime Minister. From 8 January 2007 onwards various Cabinet ministers and other state Ministers were appointed by the President acting on the advice of the interim Prime Minister. They were assigned responsibilities by the President pursuant to s103(2) of the Constitution.

THE QUESTIONS POSED

[71] In closing submissions the plaintiffs' counsel said the remaining questions for the court were:

'(a) whether the existence and/or exercise by the President of a power to appoint Ministers in the period 5 January to 15 January 2007 is amenable to judicial review, and, if so, are the events which occurred in December 2006 relevant to the determination of that issue?

(b) should the Court decline, as a matter of discretion, to grant any or all of the relief sought by the Plaintiffs?'

(c) if the issues in question (a) are amenable to judicial review, what is the court's determination?'

[72] These did not exactly dovetail in with the declarations sought in the plaintiffs' amended originating summons of 26 June 2007.

THE ACTS OF THE PRESIDENT

[73] The President, who remained in office throughout, ratified the acts of the Commander in dismissing the Prime Minister. He also ratified the dismissal of the Cabinet and the ministers of state and he ratified the appointment of a caretaker Prime Minister and the dissolution of Parliament.

[74] He went on to appoint the Commander the interim Prime Minister and to appoint other lay persons, ministers to advise him in what was to be a period of direct presidential rule. He ratified the call for fresh elections. Legislation in the intervening period prior to the formation of a democratic government was to be made by promulgation.

[75] The President gave directions for the absolving of the Commander and his men and to facilitate their immunity. He said he wanted to see enforced a genuine democracy and to take the country to elections with an advanced electoral system at the right time. He intended to have set up an anti-corruption unit. But first paramountcy was to be given to national security. All of this was contained in his address to the nation on 4 January 2007.

[76] Exercising his own deliberative powers the President promulgated an unconditional grant of immunity on 18 January 2007. It was to extend to the Commander, the caretaker Prime Minister Dr Senilagakali, all officers and members of the RFMF and the other branches of the disciplined services. It referred to the reluctant intervention, the declaration of an emergency, the holding of office as acting President and other acts. The President stated 'the aforesaid actions and events have my full and complete concurrence and approval'.

[77] His Excellency continued:

'It is my sincere and firm deliberative belief that the best and wisest course, in the interest of restoring law and order, peace, harmony and good government so that our beloved Nation will become stable and grow prosperous, is by the reserve powers of the Constitution inherent in the President and by constitutional law and common law of Fiji and by all other laws appertaining to grant FULL AND UNCONDITIONAL IMMUNITY from all criminal or civil or legal or military disciplinary or professional proceedings or consequences, instituted or to be instituted whatsoever, against or in relation to any person or persons, who by his or her or their agreement, acts or omissions, caused or facilitated or confederated in or incited or conspired or aided or abetted or counselled or procured or in any way (whether before 5 December 2006 or on it and up until 5 January 2007) to intervene in, oust and remove. from office the then legislative and executive organs of government of the Fiji islands, its Prime Minister, Ministers, Officials and also of other persons whose office or employment were not conducive to the public interest of the beloved people of Fiji.'

[78] The President then granted, irrevocably, full and unconditional immunity from prosecution, civil liability and other proceedings. The state was empowered to make ex gratia payments by way of compensation to any person proved to have suffered any unlawful injury. The promulgation was stated to be 'an entrenched provision in the law of Fiji, incapable of repeal or abrogation'.

NATURE OF PREROGATIVE POWERS

[79] In ancient times the Kings of England reigned as absolute monarchs. Over the centuries that power underwent democratic change. Magna Carta and the Bill of Rights set parameters to royal power as indeed did other statutes passed by Parliament with the royal assent. Power ebbed towards Parliament and the King's ministers.

[80] With the evolution of a constitutional monarchy there remained nonetheless certain powers which had long reposed with the sovereign. These prerogative powers were said by Dicey Introduction to the study of the law of the constitution (10th edn, 1961) p 424 to be ‘the residue of discretionary or arbitrary authority which at any given time is left in the hands of the Crown'.

[81] Some of the powers were exercised in the sovereigns name and some by the sovereign alone. They included the power to wage foreign wars, to make treaties, to defend the realm, to grant honours, to preserve the state from civil strife and to act in an emergency to ensure the well-being and safety of the people.

[82] The court has been referred to a number of authorities which demonstrate the nature and extent of these last two prerogatives. In Bhagat Singh v King-Emperor (1931) LR 58 IA 169 following civil opposition in Lahore, the Governor General of India exercised powers conferred upon him by s72 of the Government of India Act 1915 to make and promulgate an Ordinance. The purpose of the Ordinance was to transfer one of the cases arising from the disturbances to a special tribunal consisting of three High Court judges, which was accorded special powers. The petitioners argued that there was no emergency, that the promulgation was not one for peace and good governance, and that it exceeded legislative powers under the Act.

[83] Giving the opinion of the Privy Council, Viscount Dunedin said (at 171-172);

'The petitioners ask this Board to find that a state of emergency did not exist. That raises directly the question who is to be the judge of whether a state of emergency exists. A state of emergency is something that does not permit of any exact definition: It connotes a state of matters calling for drastic action, which is to be judged as such by some one. It is more than obvious that that someone must be the Governor-General, and he alone. Any other view would render utterly inept the whole provision. Emergency demands immediate action, and that action is prescribed to be taken by the Governor-General. It is he alone who can promulgate the Ordinance.'

[84] He went on (at 172):

'It was next said that the Ordinance did not conduce to the peace and good government of British India. The same remark applies. The Governor-General is also the judge of that. The power given by s72 is an absolute power, without any limits prescribed, except only that it cannot do what the Indian Legislature would be unable to do, although it is made clear that it is only to be used in extreme cases of necessity where the good government of India demands it.'

[85] With regard to the reasons for the action chosen by His Excellency, Viscount Dunedin said (at 173):

'Their Lordships must add that, although the Governor-General thought fit to expound the reasons which induced him to promulgate this ordinance, this was not in their Lordships' opinion in any way incumbent on him as a matter of law'.

[86] Bhagat Singh was followed in King-Emperor v Benoari Lal Sarma [1945] 1 All ER 210 at 212, where the court said:

'... whether an emergency existed at the time when an Ordinance is made and promulgated is a matter of which the Governor-General is the sole judge.'

(See too Public Prosecutor v Ooi Kee Saik [1971] 2 MLJ 108.)

[87] The court allowed to the Governor General the possibility of making provisions 'which could be instantly applied if the danger increased'. His Excellency was not to be denied the exercise of any foresight in the protection of the state: Shreekant Pandurang v Emperor ILR [1943] B 331 at 351 per Beaumont CJ and Burmah Oil [1964] UKHL 6; [1964] 2 All ER 348 at 353 per Lord Reid.

[88] In King-Emperor v Benoari Lal Sarma, following the bombing of Rangoon and the movement of Japanese Forces into Burma, the Governor General of India considered it a sufficient emergency to provide for the setting up of special criminal courts with restrictions on appeals. The Ordinance promulgated was found by the Board to be intra vires the Governor General's powers.

[89] If it is suggested, as here, that there was no or no sufficient emergency that fact must be proved by the party making such allegation: Ningkan v Government of Malaysia [1970] AC 379 at 390. In that case the plaintiff as Chief Minister of the State of Sarawak had not been defeated on the floor of the Council Negri in either a Bill or a motion of no confidence. Instead the Governor had acted on a signed letter and asked the Chief Minister to tender his resignation. When the Chief Minister refused to do so, the Governor published his decision that the plaintiff and other members of the Supreme Council had ceased to hold office. He also announced the appointment of a successor.

[90] The deposed Chief Minister contested the matter in court and was at first successful in being reinstated. But he was not thereafter prepared to submit himself to a no confidence vote. The head of the Malaysian Federation, the Yang di-Pertuan Agong or King, then proclaimed a state of emergency throughout the State of Sarawak. The Board of the Privy Council, comprising Lords MacDermot, Hodson, Upjohn, Donovan and Pearson, said ([1970] AC 379 at 388):

'There can be no doubt that this proclamation was directed to the constitutional impasse which had come about in Sarawak.'

[91] Emergency legislation was then passed by the federal Parliament directed at the situation in Sarawak. The statutes had a limited life span of six months beyond the termination of the emergency. The Board, noted ([1970] AC 379 at 388):

'But it was not disputed that they involved a modification, albeit temporary, of the 1963 Constitution of Sarawak and would have been beyond the powers of the Federal parliament before the declaration of emergency.'

[92] 'Emergency' within that constitutional article was held by the Board ([1970] AC 379 at 390) to be one-

'not only grave but such as to threaten the security or economic life of the Federation or any part of it, the natural meaning of the word itself is capable of covering a very wide range of situations and occurrences, including such diverse events as wars, famines, earthquakes, floods, epidemics and the collapse of civil government.'

Viscount Radcliffe considered the emergency prerogative might also be invoked in the circumstances of `Riot, Pestilence and Conflagration' (Burmah Oil [1964] UKHL 6; [1964] 2 All ER 348 at 363).

[93] Of the decisions of the head of state and those of his ministers, the Board observed ([1970] AC 379 at 391):

'It is not for their Lordships to criticise or comment upon the wisdom or expediency of the steps taken by the Government of Malaysia in dealing with the constitutional situation which had occurred in Sarawak, or to inquire whether that situation could itself have been avoided by a different approach.'

[94] The Board found that it would have been within the contemplation of the parties to the Malaysia Agreement that powers might be needed to meet such a situation, including a power to modify at any rate temporarily, the Constitution of that part of the federation which was principally affected ([1970] AC 379 at 393). Legislative change therefore, even constitutional amendment, might be necessary in addressing a governmental impasse. That would be a further means at the disposal of a head of state, in addition to the power to override a provision of the Constitution in a grave situation.

[95] In Burmah Oil Co Ltd v Lord Advocate [1964] UKHL 6; [1964] 2 All ER 348 the claimant company sought compensation for the wartime demolition of its installations near Rangoon. The General Officer commanding in Burma ordered the destruction of oil wells, pipelines, stock, and equipment to deny to the invading Japanese the use of such valuable supplies for its military.

[96] The demolitions were found to have been carried out lawfully though without statutory authority. They were acts done in exercise of the royal prerogative. Nonetheless the damage to the property did not occur in the course of actually fighting the enemy. If it had, it would not have given rise to a claim for compensation. But since those anticipatory destructions took place prior to the clash of battle and whilst the enemy was still approaching, the oil company retained a right to claim compensation.

[97] The Crown must be free to take whatever proactive action it considers necessary for the protection of the state, that was its prerogative right ([1964] 2 All ER 348 at 396 per Lord Upjohn). Its power to act is not to be confined to cases of imminent danger and necessity. In line with earlier authority Lord Upjohn said ([1964] 2 All ER 348 at 397);

'It is clear that the Crown alone must be the judge of the precise emergency and exact point of time when it is necessary to exercise the prerogative in order to defend the country against apprehended invasion or, indeed, to take steps to prepare the country for war against a foreign power.'

[98] In Crown of Leon (Owners) v Admiralty Comrs [1921] 1 KB 595 a proclamation was issued by the King prior to the declaration of war. The proclamation authorised the requisitioning of a British ship to carry a cargo of iron ore to Philadelphia to be made into munitions in readiness for war. It was contended that the prerogative had been stretched and exercised illegally. The court found otherwise and declared the action taken both necessary and proper. It was an example of the exercise of the royal prerogative in England being used to legislate in an emergency without resort to the usual constitutional mechanism of proceeding through Parliament.

[99] In Burmah Oil [1964] UKHL 6; [1964] 2 All ER 348 at 365 Viscount Radcliffe cited passages from John Locke's treatise The End of Civil Government (1689) (chapter 14 of which is entitled 'Of Prerogative'):

'For the legislators not being able to foresee and provide by laws for all that may be useful to the community, the executor of the laws, having the power in his hands, has by the common law of Nature a right to make use of it for the good of the society, in many cases where the municipal law has given no direction, till the legislative can conveniently be assembled to provide for it; nay, many things there are which the law can by no means provide for, and those must necessarily be left to the discretion of him that has the executive power in his hands, to be ordered by him as the public good and advantage shall require ...'

[100] And ([1964] 2 All ER 348 at 365):

'This power to act according to discretion for the public good, without the prescription of the law and sometimes even against it, is that which is called prerogative ...'

The House of Lords continued ([1964] 2 All ER 348 at 365):

'The essence of a prerogative power, if one follows out Locke's thought, is not merely to administer the existing law - there is no need for any prerogative to execute the law - but to act for the public good, where there is no law, or even to dispense with or override the law where the ultimate preservation of society is in question.'

[101] Locke's work was described by Viscount Radcliffe ([1964] 2 All ER 348 at 365) as-

'profoundly influential, not only with the Whigs who dominated so much of English politics for 150 years after 1688 but also with the founders of the American Constitution.'

It was also relied on by Blackstone in 1 Commentaries (8th edn, 1778) p 252. Lord Denning in Laker Airways v Dept of Trade [1976] EWCA Civ 10; [1977] 2 All ER 182 at 192 similarly made respectful reference to Locke, and stated that the prerogative was a discretionary power to be exercised by the executive government for the public good in cases where the law had made no provision.

[102] In Council of Civil Service Unions v Minister far Civil Service [1985] LRC (Const) 948 at 1025-1026 Lord Diplock commented on the prerogative powers:

'... there have unquestionably survived into the present day a residue of miscellaneous fields of law in which the executive government retains authority' making powers that are not dependent upon any statutory authority.'

They extended to ‘matters so vital to the survival and welfare of the nation' (at 1026).

[103] Prerogative powers are not immutable, and coercive orders for instance, can now be made against the state for breaches of an individual's constitutional rights: Gairy v A-G [2001] UKPC 30, [2001] 4 LRC 671 at [19]. In A-G v De Keyser's Royal Hotel [1920] UKHL 1; [1920] AC 508 at 565 Lord Sumner noted that 'the scope both of emergencies and of acts to be justified by emergency extends, and the prerogative adjusts itself to new discoveries'. As counsel put it: 'The prerogative, being residual and inherent, consists of rubric or category powers that are capable of adjusting to new situations.'

[104] Yesterday's emergencies may not repeat themselves today, and today's emergencies may be beyond the foresight of the most imaginative parliamentary draftsmen. One cannot expect statute law to cover every eventuality of government. We will return to the question of constitutional acknowledgment of the prerogative powers further on. However, Lord Parmoor observed in De Keyser [1920] UKHL 1; [1920] AC 508 at 567:

'The Royal Prerogative connotes a discretionary authority or privilege, exercisable by the crown, or the Executive, which is not derived from Parliament, and is not subject to statutory control. This authority or privilege is in itself a part of the common law, not to be exercised arbitrarily ...'

[105] A further extent of the royal prerogative was recognised in R v Home Secretary, ex P Northumbria Police Authority [1988] 1 All ER 556. The Home Secretary had overridden the wishes of a regional police authority to ensure the supply to all police forces of modern equipment to deal with incidents of serious public disorder. Nourse LJ recognised the existence a duty or prerogative of protection. He said (at 575):

'The wider prerogative must have extended as much to unlawful acts within the realm as to, the menaces of a foreign power. There is no historical or other basis for denying to the war prerogative a sister prerogative of keeping the peace within the realm. I have already expressed the view that the scarcity of references in the books to the prerogative of keeping the peace within the realm does not disprove that it exists. Rather it may point to an unspoken assumption that it does.'

[106] Lord Dunedin in De Keyser [1920] UKHL 1; [1920] AC 508 at 524 said:

'... the King, as suprema potestas [was] endowed with the right and duty of protecting the Realm ...'

It was the paramount duty of a sovereign to his people. In R (on the application of Marchiori) [2001] EWCA Civ 03, [2002] All ER (D) 220 (Jan) the English Court of Appeal held that the law of England would not contemplate a merits review of any honest decision of government upon matters of national defence policy. The court was unequipped to judge such merits or demerits. Laws LJ said:

'The defence of the realm, which is the Crown's first duty, is the paradigm of so grave a matter.'

[107] Mr McCoy QC urged on us that the scope of the prerogative exercisable in a national crisis upon which the President drew was necessarily expansive, malleable and unchecked. He said the safety of the nation must be within the unfettered control of the executive, and therefore the prerogative reserves to the executive a virtually unreviewable discretion as to what the national security requires. Mr Perram SC countered that the President must find his solution within the Constitution.

[108] The exercise of the prerogative for the nation's safety may result in private inconvenience. In Hole v Barlow [1858] EngR 652; (1858) 4 CB (NS) 334 at 335 Willes J gave the example of the Queen taking land for the purpose of setting up defences thereof for the good of the nation when invasion was apprehended. In such cases 'private convenience must yield to public necessity'. Statute may be overridden in the process if necessary, although statutes providing for compensation are to be upheld.

[109] In his renowned text Constitutional and Administrative Law in New Zealand (3rd edn, 2007) Professor Philip Joseph commented on the prerogative with regard to keeping the peace:

'Although Chitty's Treatise on the Law of the Prerogative of the Crown p 365 omitted any reference to keeping the peace, the authorities have held that the emergency power is so intimately linked to the original purposes of government and civil society that it implicitly falls within the Crown's prerogatives. A 19th century court observed: "A leading duty, if not the leading duty, of a government is to preserve the public peace, and every one has to sacrifice part of his individual rights and liberties for that object." For Hood Phillips, the preservation of the peace was a primary function of the state, vested, he said, in the Crown.'

[110] In Reference by His Excellency the Governor-General [1955] PLD 1955 FC 435 the Queen's Representative had not been asked to assent to certain constitutional Acts of the Constituent Assembly. In seven years the Constituent Assembly of Pakistan had failed to pass into law a new post-independence Constitution and had deliberately avoided seeking assent meanwhile to legislation from the Queen’s representative so as not to acknowledge the imperial connection. The Governor General therefore dissolved the assembly, made and promulgated legislation, and gave retrospective assent so as to validate all of the earlier incomplete legislation, Muhammed Munir CJ said (at 485):

'If the law as stated by Chitty that the Crown is the only branch of Legislature that is capable of performing any act at a time when Parliament is not in being is correct, legislative powers of the Crown in an emergency are a necessary corollary from that statement, and the same result flows from Dicey's statement that the free exercise of a discretionary or prerogative power at a critical juncture is essential to the executive government of every civilised country, the indispensable condition being that the exercise of that power is always subject to the legislative authority of parliament, to be exercised ex post facto.'

[111] His Lordship held that the manner in which such power is exercised was essentially a question of method and detail. The court held that the Governor General had acted in order to avert an impending disaster and to prevent the state and society from dissolution (at 486). The Governor General's acts otherwise unlawful were validated.

[112] In Re Manitoba Language Rights [1985] 1 SCR 721 the Supreme Court of Canada had had referred to it a matter that combined legal and constitutional questions of the utmost subtlety and complexity with political questions of great sensitivity. The Acts of the legislature were by the Manitoba Act 1870 to be printed and published in both the main languages, English and French. It appeared this constitutional requirement had fallen into disuse. But it was a mandatory requirement. If the courts declared the long-standing legislation invalid 'a legal vacuum will be created with consequent legal chaos in the Province of Manitoba'.

[113] The court cited Wade and Phillips Constitutional and Administrative Law (9th edn, 1977) p 89, where the learned editors had said:

'... the rule of law expresses a preference for law and order within a community rather than anarchy, warfare and constant strife. In this sense, the rule of law is a philosophical view of society which in Western tradition is linked with basic democratic notioris.'

[114] The court saw its role as one where it could not-

'take a narrow and literal approach to constitutional interpretation. The jurisprudence of the court evidenced a willingness to supplement textual analysis with historical, contextual and purposive interpretation in order to ascertain the intent of the makers of our Constitution.' (See [19851 1 SCR 721 at 751.)

[115] The court decided that the invalid current Acts of the legislature would be deemed temporarily valid giving such minimum time as was necessary for their translation, re-enactment, printing and publication.

[116] In A-G of the Republic v Mustafa Ibrahim [1964] Cyprus Law Reports 195 the Cypriot Court of Appeal approved a temporary law passed by the Parliament abolishing the constitutional requirement for mixed race courts. Turkish insurgents had gained control of parts of the island preventing Turkish Cypriots from participating in public life, government, the Parliament and the courts. Since the members of the Supreme Constitutional Court had resigned, Parliament had to invest its jurisdiction in the Court of Appeal. The court went on to uphold various measures taken in the emergency, including the pressing imperative for the judiciary to take steps to maintain its ability to function.

[117] Vassiliades J commented ([1964] Cyprus Law Reports 195 at 212):

'I do not need to stress here the importance of a properly functioning judicial system, for the life of the state, for the existence of the community, and for the daily life of every person living within the territorial boundaries of the Republic.'

These comments were also approved by Haynes P in the leading judgment in Mitchell [1986] LRC (Const) 35 at 89.

[118] Haynes P along with the other members of the court held that the Governor General could lawfully assume executive power following the coup d'etat in Grenada. He could rule directly and legislate by proclamation pending his attempts to effect the restoration of law and parliamentary government.

THE CONTINUANCE OF PREROGATIVE POWERS IN FIJI

[119] In his constitutional text Constitutional and Administrative Law in New Zealand (3rd edn, 2007) Professor Joseph referred to the residual legislative prerogative of the Crown. He said (p 676):

'In conquered or ceded colonies, the crown retained plenary powers to legislate by proclamation, order in Council, or letters Patent.'

[120] The royal prerogative can be traced back 1,000 years to the Norman Conquest. It remains unless 'superceded by statute, eroded by judicial decision or atrophied by neglect or disuse' (Joseph, p 617). Not unnaturally, it followed the Crowns servants and adventurers as they traversed the globe and forged the empire. Joseph recognised two principles at work. First the settlers took with them all of the laws of England as applicable to their new situation. Second, under the imperial unity of the Crown the prerogative automatically took root in the distant colonies:

'The Prerogative is not confined to the British Islands, but extends to all parts of the Commonwealth of which the Queen is monarch as fully in all respects as to England, unless otherwise prescribed by United Kingdom or local enactment.' (See Halsbury's Laws of England (4th edn, reissue 1996), para 370.)

[121] That the prerogatives travelled to the colonies was confirmed in Kielly v Carson [1842] EngR 593; (1842) 4 Moo PC 63 at 85, a Newfoundland case, in Phillips v Eyre (1870) LR 6 QB 1 at 19-20, a Jamaican case, and in Solicitor-General v Corp of City of Dunedin (1875) 1 NZ Jur (NS) 1 at 14-15, a New Zealand case.

[122] In A-G of Fiji v DPP [1983] 2 AC 672 at 678 the Privy Council said:

'Executive authority is vested in Her Majesty and, save as otherwise provided in the Constitution, it may be exercised on her behalf by the Governor-General, either directly or through officers subordinate to him...'

[123] Whether the Fiji Constitution has expressly or by necessary implication abrogated the application of any of the prerogatives formerly open to the Governor General is a matter which we will discuss further on.

HOW FAR IS THE PRESIDENT'S ACTION REVIEWABLE?

[124] The courts may determine whether a prerogative power to act exists. This would include being able to inquire as to whether any enactment or constitutional provision has removed the President's power to act, either wholly or in part, and whether truncated or removed completely. However, in the absence of bad faith on the President's part, as here, a state of affairs which the plaintiff's have properly accepted, the court's inquiry cannot extend to whether one course of action rather than another might have been more suitable as a remedy, whether more efficacious, wiser or better founded. These are of the nature of political inquiries and assessments which the court has neither the jurisdiction nor competence to enter upon: Council of Civil Service Unions v Minister for Civil Service [1985] LRC (Const) 948 at 1027 per Lord Diplock.

[125] In the same case Lord Scarman ([1985] LRC (Const) 948 at 1023) discussed the reviewability of the exercise of the royal prerogative. He considered the controlling factor in determining whether the exercise of prerogative power was subject to judicial review was not its source but its subject matter. Lord Roskill ([1985] LRC (Const) 948 at 1036) held that some matters, of which national security was one, were not amenable to the judicial process. The rationale for non-justiciability is sometimes founded in the fact that the President's decision under the prerogative required 'delicate political judgment': Adegbenro v Akintola [1963] 3 All ER 544 at 551 per Viscount Radcliffe. Again the court cannot second guess such decisions.

[126] The existence of a national security situation or government's need for land by way of compulsory acquisition, save compensation, are both non-justiciable: Wijeysekera v Festing [1919] AC 646 at 649. Dr Shameem referred us to s194(10) of the Constitution as the justiciability clause for persons or authorities charged with constitutional duties and protections. We consider this section does not seek to change the common law approach as we have discussed.

HAVE THE PREROGATIVE POWERS BEEN EXCLUDED BY THE CONSTITUTION?

[127] The plaintiffs maintain there was no need for the President to act outside of the Constitution. What he was to do instead in the face of the crisis, crisis being an assessment of the situation accepted by Mr Qarase in his evidence, was not clearly put forward. If Mr Qarase was re-instated by the President, or recalled to allow him to resume office, any further action taken, Mr.Perram said, was to be within the confines of the Constitution.

[128] That would mean that the President would need to comply with ss107, 108 and 109. They provide:

'Defeat of Government at polls or on floor of House

107. If

(a) the Government is defeated at a general election; or

(b) the Government is defeated on the floor of the House of a Representatives in a vote:

(i) after due notice, on whether the Government has the confidence of the House of Representatives;

(ii) that the Government treats as a vote of no confidence; or

(iii) the effect of which is to reject or fail to pass a Bill appropriating revenue or moneys for the ordinary services of the Government;

and the Prime Minister considers that there is another person capable of forming a Government that has the confidence of the House of Representatives, the Prime Minister must immediately advise the President of the person whom the Prime Minister believes can form a Government that has the confidence of the House and must thereupon resign.

Advice to dissolve Parliament by Prime Minister defeated on confidence vote

108(1) If a Prime Minister who has lost the confidence of the House of Representatives (defeated Prime Minister) advises a dissolution of the House of Representatives, the President may, acting in his or her own judgment, ascertain whether or not there is another person who can get the confidence of the House of Representatives (alternative Prime Minister) and:

(a) if the President ascertains that an alternative Prime Minister exists - ask the defeated Prime Minister to resign, dismiss him or her if he or she does not do so and appoint the alternative Prime Minister; or

(b) if the president cannot ascertain that an alternative Prime Minister exists - grant the dissolution advised by the defeated Prime Minister.

(2) If the President appoints the alternative Prime Minister pursuant to paragraph (1)(a) but the alternative Prime Minister fails to get the confidence of the House of Representatives, the President must dismiss him or her, re-appoint his or her predecessor and grant that person the dissolution originally advised.

Dismissal of Prime Minister

109(1) 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.

(2) If the President dismisses a Prime Minister, the President may, acting in his or her own judgment, appoint a person as a caretaker Prime Minister to advise a dissolution of the Parliament.'

[129] Three other sections of the Constitution are also relevant.

'President acts on advice

96(1) Subject to subsection (2), in the exercise of his or her powers and executive authority, the President acts only on the advice of the Cabinet or a Minister or of some other body or authority prescribed by this Constitution for a particular purpose as the body or authority on whose advice the President acts in that case.

(2) This Constitution prescribes the circumstances in which the President may act in his or her own judgment.

Responsible government

97. Governments must have the confidence of the House of Representatives.

Appointment of Prime Minister

98. The President, acting in his or her own judgment appoints as Prime Minister the member of the House of Representatives who, in the President's opinion, can form a government that has the confidence of the House of Representatives.'

[130] The dismissal of Mr Qarase as Prime Minister, the dismissal of the Cabinet, the appointment of a caretaker Prime Minister to advise on the dissolution, and the dissolution itself, were not carried out in compliance with the above sections.

[131] The President's role is summarised in the Constitution in Ch 7, ss85-87, under the heading 'Executive Authority'. They provide:

'President

85. This section establishes the office of the President. The executive authority of the State is vested in the President.

Head of State

86. The President is the Head of State and symbolises the unity of the State.

Commander-in-Chief

87. The President is the Commander-in-Chief of the military forces.'

[132] No specific mention is made of prerogative as such, nor can repeal of the powers that travelled with empire be read into such silence. The national security prerogative could only be abrogated by express words or by words of necessary implication: Re X's Petition of Right [1915] 3KB 649 at 660 per Lord Cozens-Hardy MR. The prerogative as part of the common law of Fiji sits happily with statute law. Even in the times of the Stuart Kings the royal prerogative had not been used to take land without paying for it. When the taking of land by way of compulsory acquisition is encapsulated in legislation, which also provides for the payment of compensation, the Crown is subject to the empowerments granted by the Act or Acts, and the prerogative remains in abeyance (in De Keyser [1920] UKHL 1; [1920] AC 508 at 539-540 per Lord Atkinson). But Lord Moulton (at 554) considered conceptually that the prerogative had not been abrogated in those circumstances. Rather, the legislature had given to the Crown statutory powers which rendered the exercise of that prerogative unnecessary.

[133] In British Coal Corporation v R [1935] AC 500 at 519 the House of Lords: was considering whether the prerogative right of appeal for the Province of Quebec to the King in Council had been effectively abrogated by the Dominion legislature. The House held that it had. Viscount Sankey LC for the House said (at 519):

'No doubt the principle is clearly established that the King's prerogative cannot be restricted or qualified save by express words or by necessary intendment. In connection with Dominion or Colonial matters that principle involves that if the limitation of the prerogative is by a Dominion or Colonial Act, not only must that Act itself deal with the prerogative either by express terms or by necessary intendment, but it must be the Act of a Dominion or Colonial Legislature which has been endowed with the requisite power by an Imperial Act likewise giving the power either by express terms or by necessary intendment.'

This principle was marked and followed by the New Zealand Court of Appeal in Simpson v A-G [1955] NZLR 271 at 280.

[134] Sections 85-87 of the Constitution cannot be regarded as a code. The sections do not in detail set out the reserve powers of the President in matters of the prerogatives, those of defence of the realm, of national security and of securing the peace, protection and safety of the people. Nor can any necessary intendment unequivocally be drawn from it. The sections contain merely a summary by headings indicating areas of the President's role in the state. That is all. The Constitution has never been intended as a complete code. The plaintiffs urge a textual analysis of the Constitution. Even settler colony documents were given a wide and expansive treatment. Nowadays the approach is to give a generous and purposive approach to the interpretation of all written Constitutions: Matthew v State [2004] UKPC 33, [2004] 4 LRC 777.

[135] In De Keyser's [1920] UKHL 1; [1920] AC 508 at 526 Lord Dunedin said that-

'if the whole ground of something which could be done by the prerogative is covered by the statute it is the statute that rules.'

In R (Mahmood) v Royal Pharmaceutical Society [2001] EWCA Civ 1245, [2002] 1 WLR 879 at [27] Kennedy LJ held that the whole ground was not covered by the statute. As a result, byelaw-making powers deriving from the original charter of the society had not been extinguished.

[136] We find that the relevant prerogatives have not been abrogated by the Constitution. We are dealing with the most fundamental of the reserve powers of the head of state. The greater the power, the clearer must be the form and language of ouster. We do not find the scheme, order or words of the Constitution to have replaced such powers.

THE EVIDENCE OF THE PLAINTIFFS' WITNESSES

[137] Mr Laisenia Qarase and Mr Joseph Vosanibola, Prime Minister and Minister of Home Affairs and Immigration respectively, both gave evidence for the plaintiffs. Each was a first-named plaintiff. Each tendered affidavits. We have already commented in an earlier ruling that some of the material in Mr Qarase's affidavit was at times argumentative hearsay or otherwise inadmissible.

[138] In his cross-examination Mr Vosanibola agreed he had written to the Secretary to the Cabinet in March 2007 applying for a parliamentary pension. He agreed that such a pension was being paid to him by the interim government. More correctly that should have been 'said to have been paid to him by the state'. In the letter he had written:

'... as you are aware I ceased to be a Cabinet minister and a Member of Parliament following the events of 5th December 2006. I hereby apply for payment of my parliamentary pension as may be calculated in accordance with the applicable laws. With regards to the method of payment, I request that the payments when due be made by cheque, post or delivered to the above postal address.'

[139] Mr Qarase said he was Prime Minister in 2006 when he was removed from office. He then went away from Suva to the island of Vanuabalavu, returning only on 1 September 2007. He was asked about the communication links with the island. He accepted that there was an airport, wharves and a jetty and that he had telephone and fax facilities at his home there. He was in touch with the national director of his party, the SDL, and his former Attorney General. He had many journalists to deal with on the telephone and for radio interviews.

[140] He denied trying to mobilise supporters to take up any form of resistance, nor did he try to regain control of government or even wish for an uprising. He admitted contacting the Australian Prime Minister by telephone on or about 5 December 2006, as also the New Zealand Prime Minister. He denied inviting either Prime Minister to provide military intervention. He said the calls were to brief the two Prime Ministers and to raise questions on the provisions of the Biketawa Declaration.

[141] In cross-examination Mr Qarase agreed a foreign invasion would have been disastrous and a matter of grave national security. He denied knowledge of a Ministry of Home Affairs proposal for military intervention in Fiji, contained in a document dated 28 November 2006 prepared for the National Security Council of Fiji of which he was Chairman. Mr Qarase said there was a developing crisis in November 2006 and that national security was the most important thing to him at the time.

[142] A Fiji briefing document from the Foreign Ministers meeting of the Pacific Islands Forum entitled 'Security Situation in Fiji' was put to Mr Qarase, and its contents was accepted by him. It referred to the tangible perception that the government would seek foreign military intervention in case of escalation. Mr Qarase denied inviting military intervention by foreign powers. A clip of a BBC radio interview with Mr Qarase was played to him in which he had said:

'Well, I have been inquiring, particularly from my neighbours here, Australia and New Zealand, but they have been saying No flatly. So that option is not there.'

[143] Mr Qarase denied having invited intervention. He said he had made an inquiry on the extent and type of assistance. He had in mind something like the New Zealand peacekeeping in Tonga or the Australian forces in the Solomons. Mr McCoy then played another clip in which Mr John Howard the then Australian Prime Minister on 5 December 2006 said Mr Qarase had rung him asking for military intervenion. Mr Qarase again denied asking for military intervention.

[144] Mr Qarase was also asked about his application for a pension. He said all his parliamentary colleagues had received such save himself. He said if he was entitled to one, he should receive it. He had also written to the Secretary to Cabinet following up a prior telephone conversation. The letter said he a confirmed that he wished to take option 2, reduced pension and gratuity. He gave details of the bank account where he would like the pension paid, said he would be grateful for early action, signed himself, and wrote below 'former Prime Minister'. In evidence he said this letter was 'more by way of inquiry'.

[145] No doubt this line of questioning went to the issue of acquiescence and waiver about which we were addressed by all counsel in closing addresses.

IS THE PRESIDENTIAL PREROGATIVE THE SAME AS THE PRASAD NECESSITY?

[146] The cases discussed so far deal with the exercise of the royal prerogative either by the head of state, King, Governor General or by senior officers or ministers of state on the sovereign's behalf. In Prasad the court had to consider the actions of Commodore Bainimarama when it appeared the head of state had 'stepped aside'. No claim was made that the Commodore's actions, although found to be well intended towards the state and its people, were a manifestation of prerogative powers on behalf of the President. Nor were arguments addressed on the two sources of the powers in use in Prasad, one for the individual actor, Commodore Bainimarama, and one for the President over his use of the head of state's emergency powers.

[147] As the cases that we have traversed indicate, on grounds of extremity, gravity, and ensuing expediency, extraordinary powers are allowed to a head of state to find a way out of crisis. This unwelcome and anxious task is only granted to one person. It is a duty which was often referred to by President Truman and earthily summarised in a famous desk sign kept at the oval office inscribed with the words 'the buck stops here'. The prerogative or ultimate reserve power resides with one person only. Whereas the Prasad doctrine of necessity on the other hand is available, in the correct circumstances, to every citizen of the Republic. If the ship's cargo must be cast overboard in order that the ship might make it through the storm to safety and all lives be spared, so be it. Those who throw away the cargo can say they acted in extremis and be excused from blame for the loss.

[148] The President is authoritatively supported in the ultimate reserve power. It is indicated as a continuing common law power in ss85-87 of the Constitution, a document which nowhere excludes such power. It is a prerogative power long afforded to governors and heads of state by the common law. It flows naturally from the Ciceronian maxim 'salus populi est suprema lex': 'the welfare of the people is the paramount law′ (De Legebus 111. iii 8). It also derives from an implied mandate: Madzimbamuto v Lardner-Burke [1968] UKPC 2; [1968] 3 All ER 561 at 567-568. Although the executive authority of the state is vested by the Constitution in the President, in stating that he or she 'symbolises the unity of the state' the Constitution binds the President to act with impartiality and to achieve concord.

[149] Those who wish to avail themselves of the approval powers under Prasad must keep themselves within the conditions as set out therein and which were republished earlier in this judgment (at para [3], above). However, it is beyond doubt that the head of state is in an entirely different, special and singular category. If he acts in a crisis without mala fides and addresses the grave problems in a way that he believes honestly addresses those problems whether in peacetime or war, the courts will uphold his action: Juan Ponce Enrile v Ramos, Chief, Philippine Constabulary [1974] PHSC 353.

DID THE PRESIDENT INTEND TO EXERCISE THE PREROGATIVE?

[150] It is said the wrong section was quoted for action taken by the President and that the use of the prerogative was a fall-back position to justify action taken. It was also said the President did not intend to exercise his prerogative powers.

[151] In Commonwealth v Colonial Combing, Spinning and Weaving Co Ltd [1922] HCA 62; (1922) 31 CLR 421 at 442-443 certain agreements were made and executive action taken by the Commonwealth government of Australia. At the time when the agreements were made and the executive action taken the Commonwealth government did not address itself to, or concern itself with, its prerogative powers. It did not consider the emergency that had arisen or whether an emergency had in fact arisen justifying the exercise by it of prerogative power. Later, when the case came on for hearing, it was argued the action could also be justified by virtue of the King's prerogative. Isaacs J said it must be shown ‘that the Executive considered the step necessary for the national security and in fact acted on that basis'. The Commonwealth's argument was rejected.

[152] In Joseph v Colonial Treasurer [1918] ArgusLawRp 47; (1918) 25 CLR 32 at 43 the action taken by the state government was found not to have been an intention to exercise the national defence prerogative but a political manoeuvre to benefit the state's farmers and thereby to strengthen the position of the state government. The principles were discussed in H V Evatt's book on 'The Royal Prerogative' (1987) pp 254."-256: see too Re Price (1920) 54 DLR 286 at 291.

[153] We turn first to His Excellency's address to the nation on 4 January 2007. From this it is clear that the President accepted there was a grave crisis which he considered necessitated ‘hard and decisive decisions'. He referred to his indorsement of the Commander's actions 'acting in the interest of the nation and most importantly in upholding the Constitution'. He said he would shortly announce an interim government. This would mean direct presidential rule, clearly a step outside the norm of the Constitution, and a manifestation of an intention to exercise prerogative power.

[154] The next day His Excellency extended the state of emergency and later promulgated Public Emergency Regulations which in turn were extended over several months. On 16 January 2007 the President ratified and validated decrees.

[155] We do not feel it necessary to traverse all of the matters which we feel would have fuelled an intention on the part of the President to act using reserve powers. The history of the nation with its four coups, the ultimatums and the disputes between the Qarase government and the military, the constant state of strife, the presence of Australian warships in Fiji waters, and the occurrence of the military takeover a month previous, all would have forced the President's hand to use such powers.

CONCLUSION

[156] In life it is easier to improve someone else's draft than to initiate one’s own creation. There are always many commentators ready to occupy the space of the auditorium but fewer to volunteer to act upon the stage. In the President's case, in dealing with the growing crisis in November and December 2006, the events of 5 December 2006 and then those of the restoration of 4 January 2007, the decisions to be made were for the President alone. None of them could have been easy. Shakespeare Henry IV (Part 2) III i 30 provides us with the apposite line for such an anxious responsibility:

'Uneasy lies the head that wears the Crown.'

[157] No one has suggested His Excellency failed to act honestly, impartially, neutrally and in what he gauged was in the best interests of the nation, that is, of all of the inhabitants of Fiji. It is not for this court to inquire into the details of his acts or to comment on whether one action would have been better done another way. But it is certainly open to conclude his intentions were to unify the people of Fiji.

[158] The President assessed that Fiji was at a crossroads and had reached a grave crisis. A military intervention had already occurred at the end of a long tunnel of civil strife. If he returned the nation to the status quo ante what might have been the result? We do not have the various intelligence and political assessments before us which might have been available to His Excellency. When he had the freedom to act again as President on 4 January 2007 he had to act swiftly and decisively.

[159] Cromwell, though a usurper himself, percipiently observed of the urgency of such a moment:

'lf nothing should be done but what is according to law, the throat of the nation might be cut while we send for someone to make a law'.

[160] The President's decision in short was to exercise prerogative powers to rule directly until suitable elections could be conducted. He decided to rule meanwhile with the advice of a Prime Minister and Cabinet. That decision, if it were to succeed, necessarily involved ratifying the acts already carried out by Commodore Bainimarama. They were the dismissal of the Prime Minister Mr Qarase, the dismissal of his ministers, the device of the appointment of Dr Senilagakali as caretaker Prime Minister who in turn advised the dissolution of parliament, and the dissolution itself. Thereafter he appointed to advise him a new Prime Minister and ministers. In further shorthand the President decided 'direct rule, fresh elections with conditions'. The details of how all of this was to be achieved did not affect or deflect from the President's clear intention to act to save the country from its strife or affect the legality of his acts within the scope of the ultimate reserve powers.

[161] In his speech the President referred to taking the country to elections with an advanced system at the right time. He also gave directions for the absolving of the Commander and his men: Direct rule meant that legislation would have to be made by promulgation. Though we find that the president exercises a different power from that permitted to Commodore Bainimarama in 2000 in Prasad, it may be concluded that the President's actions did comply exercises with the conditions imposed by Prasad. The approach to such an appraisal would be, as already indicated, on the basis of allowing for the president a very wide ′margin of appreciation′ as noted in Ningkan v. Government of Malaysia [1970] AC 379 at 390.

[162] We find that exceptional circumstances existed, not provided for by the Constitution, and that the stability of the state was endangered. We also find that no other course of action was reasonably available, and that such action as taken by the President was reasonably necessary in the interests of peace, order and good government. Rather than impairing the just rights of citizens we conclude that the President's actions were designed to protect a wide variety of competing rights from displacement by avoiding conflagration.

[163] We also do not find that the President's actions consolidated any revolution. The Constitution remained and remains intact. The government exists in the interim by way of direct presidential rule with His Excellency being advised by a Prime Minister and Cabinet of ministers. There have been criticisms of the inclusion of Commodore Bainimarama as Prime Minister. We are not aware of specific difficulties the President may have incurred in obtaining the services of competent and valiant citizens to advise him at this time. Ideally his advisers should be drawn from across party lines and from a wide political spectrum of civil society. It is clear from media reports many politicians have been reluctant to assist. These persons might otherwise have advised the President on the wise way to achieve a smooth return to democratic rule through universally approved elections. In addition, neighbouring states have imposed travel bans on persons wishing to assist the President on the ground that their actions would bolster an illegal regime. Such action would not have assisted the President in obtaining a broad cross-section of persons from Fiji public life so as to forge a way out of the crisis. Non-participation, whilst a free and democratic choice, does not always assist the democratic aim: A-G v Malawi Congress Party [1997] MWSC 1.

[164] It is necessary to say something about the President's power to promulgate legislation prior to the return of Parliament. Parliament is the constitutional forum for the consideration of new legislation. It would be constitutionally appropriate for the incoming Parliament to consider all decrees or promulgations made in the intervening period which have not received the scrutiny of the full parliamentary process. Promulgations with far-reaching effect on the lives of citizens, such as the FICAC promulgation, require such scrutiny and representative assent. Meanwhile, such legislation is of lawful effect. Subsequently it will be for Parliament to decide whether to continue with such legislation or whether some amendment is necessary.

[165] In Jokapeci Koroi v Asesela Ravuvu (15 June 2001; HBC007.01L) in a brief ruling on an injunction application Gates J said:

'The doctrine of necessity is a narrow doctrine and does not cover matters outside of the routine and the necessary.'

In Koroi v Comr of Inland Revenue [2003] NZAR 18 at 36 Gates J in a more considered judgment said ‘but no act will have authority if it goes beyond the routine'.

[166] We feel this may have been an unnecessarily narrow interpretation. Gates J was not referred to citations that show a more generous approach to legislative powers during a period of extra-constitutionality. First a period of legitimate direct presidential rule, not rule by a usurper, permits of wide ranging powers; see Professor R Q Quentin Baxter 'The Governor General's Constitutional Discretions: an essay towards a re-definition' (1980) 10 VUWLR 293. Second, the Prasad conditions which formed the basis for the narrow interpretation of law-making capability in the interregnum that is, of action (and legislation) necessary in the interest of peace, order and good government, had already attracted authoritative interpretation in the Privy Council decision in the Ceylon case of Ibralebbe (alias Rasa Wattan) v R [1964] 1 All ER 251 at 260. The Board said:

'The words "peace, order, and good government" connote, in British constitutional language, the widest law-making powers appropriate to a sovereign.'

(See too Philip Joseph, Anglo-American Law Review (1998) 18 at 91, 100.)

[167] Other than to realise he must rule without the reassurance of popular mandate during the interregnum, the President has yet for his purposes a full sufficiency of powers to legislate for the public good meanwhile: Bhagat Singh (1931) LR 58 IA 169 at 172.

[168] We approve also the good sense of the draftsman of the Constitution in not seeking to define 'emergency' or 'gravity of situation' when indicating where the President might act for the people, it would be impossible to cover the range of dilemmas that might arise. Of course dilemmas would not count as crises if they were merely political inconveniences. There has been no suggestion here that the head of state was confronted with a situation of mere awkwardness or inconvenience. The crisis was real. In Mitchell [1986] LRC (Const) 35 at 94 Haynes P observed:

'We, in the jurisdictions with written Constitutions of the Westminster model realise that the Constitution does not and cannot provide for every political situation that might arise. It does not provide for extra-constitutional situations like this one at all. We, in the Caribbean judiciary must do so. We cannot find the solution in English cases. We ought not to look to English judges to decide it for us.'

[169] We note the completion of a census as a necessary preliminary to the holding of accurate and fair elections. We take notice of the significant demographic changes brought to light from that survey which are likely to effect a permanent and growing dominance of the Parliament by the indigenous. As was the case in Bhutto v Chief of Army Staff PLD 1977 SC 657, we do not find it appropriate to issue directions as to a definite timetable for the holding of elections. No doubt the President will have uppermost in his mind the twin imperatives of the sanctity of fair elections on the one hand and the need for urgent return to democratic rule on the other. In Mitchell [1986] LRC (Const) 35 at 94 Haynes P said the court assumed that the government would act with reasonable despatch.

[170] We also note the close similarities in the path chosen by the President with the advice tendered to him by the Great Council of Chiefs.

[171] To answer the questions posed therefore:

(a) In the absence of mala fides or arbitrariness - the existence only and not the exercise of the President's powers to appoint ministers was capable of judicial review. The events of December 2006 are relevant to that determination.

(b) The court declines to grant the relief sought.

(c) The President's actions at the relevant time were valid and are held to be lawful.

[172] The court dismisses the plaintiffs' claim, and will consider costs subsequently on a motion with affidavit setting out a brief summary of heads of expenditure.

[173] The declaratory orders of the court are:

'(i) The plaintiffs' originating summons is dismissed.

(ii) The decision of the President to ratify the dismissal of the Prime Minister and his ministers, to appoint Dr Senilagakali as caretaker Prime Minister to advise the dissolution of Parliament, and the dissolution of Parliament itself, are held to have been valid and lawful acts in exercise of the prerogative powers of the head of state to act for the public good in a crisis.

(iii) For the same reasons the further decision of the President to rule directly pending the holding of fresh, fair and accurate elections is upheld as valid and lawful.

(iv) For the same reasons the President's decision to make and promulgate legislation in the interest of peace, order and good government in the intervening period prior to a new Parliament is upheld as valid and lawful.

(v) The grant of immunity by promulgation was similarly within the powers of the President in the emergency, and such grant is upheld as valid and lawful.

(vi) The matter of costs will come back before the court in an application by motion and affidavit with brief schedule of costs.'

Orders accordingly.

Solicitors:
Tevita Fa & Associates (Suva) for the plaintiffs.
Office of the Attorney General (Suva) for the defendants.
Fiji Human Rights Commission as amicus curiae.

Appeal
The plaintiffs, Laisenia Qarase, Ratu Naiqama Lalabalavu, Ro Teimumu Kepa, Ratu Suliano Matanitobua and Joseva Vosanibola appealed against the judgment of Gates Ag CJ, Byrne and Pathik JJ in the High Court on 9 October 2008 dismissing their application for declarations that the removal of the Prime Minister, Cabinet and ministers by force of arms was unconstitutional and unlawful. The defendants, Josaia Voreqe Bainimarama (Commander of the Republic of Fiji Military Forces), the Republic of Fiji Military Forces, the State of the Republic of the Fiji Islands and the Attorney General of the interim regime opposed the appeal. The Fiji Human Rights Commission and the Citizens' Constitutional Forum Ltd were amicus curiae. The facts are set out in the judgment of the court.

Bret Walker SC, Rachel Pepper and Tevita Fa for the plaintiffs/appellants.
Richard Gordon QC, Gerard McCoy QC, Christopher Pryde (Solicitor General) and
Kerry Cook for the defendants /respondents.
Dr Shaista Shameem, Wilfred Golman and Sovanatabua Colovanua for the Fiji Human Rights Commission, intervening.
Dr Melissa Perry QC and Nicola McGarrity for the Citizens Constitutional Forum Ltd, intervening.

9 April 2009. The following judgment of the court was delivered.

POWELL, LLOYD and. DOUGLAS J JA.

THE PARTIES AND THESE PROCEEDINGS

[1] On 17 March 2006 Ratu Josefa Iloilovatu Uluivuda ('President Uluivuda') was re-appointed by the Great Council of Chiefs for a further five years as President of the Republic of the Fiji Islands ('Fiji').

[2] On 5 December 2006 the First Respondent Commodore Josaia Voreqe Balniniararna (the Commander) being Commander of the Republic of Fiji Military Forces ('RFMF') purported to assume the office of President of Fiji and to dismiss the Prime Minister, Mr Laisenia Qarase ('Mr Qarase'). He then appointed an interim prime minister, who advised him to dissolve Parliament, and on 6 December 2006 the Commander purported to do so (see Declaration of a State of Emergency, 6 December 2006, Fiji Gazette, vol 1, No 2).

[3] On 5 January 2007 the Commander purported to stand down as president. President Uluivuda then purported to ratify and confirm the actions of the Commander and the RFMF up until 4 January 2007 (Ratification and Validation of the Declaration and Decrees of the Fiji Military Government Decree 2007 (16 January 2007), Fiji Government Gazette, vol 7, No 4) and he appointed the Commander Prime Minister of an interim government, and announced that until elections were held legislation would be made by promulgation.

[4] Mr Qarase brought these proceedings challenging certain acts of President Uluivuda. On 9 October 2008 the High Court made a number of declarations. These included that the decision of President Uluivuda to ratify the dismissal of Prime Minister Qarase, to appoint a caretaker prime minister to advise the dissolution of parliament, the appointment of other lay persons as ministers to advise him in what was to be a period of direct presidential rule and the dissolution of Parliament itself, were valid and lawful acts in the exercise of the prerogative powers of the head of state to act for the public good in a crisis: [2008] FJHC 241, [200913 LRC at 614.

[5] Mr Qarase and the four other politicians appeal that decision to this court. In order that this decision may be considered in its appropriate context, it is necessary to understand a little concerning the recent constitutional and political history of Fiji. In doing thus, we agree with the respondents' submissions that the events of January 2007 must be viewed against the backdrop of the nation's history.

INDEPENDENCE AND THE 1970 CONSTITUTION

[6] On 10 October 1874 Fiji was ceded by the Chiefs of Fiji to the United Kingdom. Fiji became a separate British colony by virtue of a Charter passed under the Great Seal of the United Kingdom on 2 January 1875. In November 1879 the Chiefs of Rotuma likewise ceded Rotuma, which thereupon became part of the Colony of Fiji.

[7] From 1874 until 1970 Fiji remained a colony of the United Kingdom. In 1970 Fiji was granted independence by the Fiji Independence Order 1970 (`the 1970 Constitution') and became a constitutional monarchy with the Queen as head of state, represented in Fiji by the Governor General (See Republic of Fiji Islands v Prasad [2001] 2 LRC 743. Part of this chronological explanation of events is taken from the material filed in these proceedings or other publicly available and notorious sources including Prasad and Yabaki v President [2003] FICA 3.)

[8] At independence approximately half the population were classified by race as ethnic Fijians and half as Fijians of Indian origin ('Indo Fijians'). The ancestors of the vast majority of the Indo Fijians were brought to Fiji in the half century prior to the 1914-18 war.

[9] Pre-independence legislation protecting ethnic Fijian affairs and land remained in force after independence, but the 1970 Constitution entrenched the provisions of these Acts so that they could not be altered without a majority of three-quarters of all members of each House of Parliament. Any alteration of the constitutional provisions entrenching such Acts required similar majorities.

[10] The 1970 Constitution also included the rights of the Bose Levu Vakaturaga ('Great Council of Chiefs') established under the Fijian Affairs Act to nominate senators in addition to those nominated by the Prime Minister and the Leader of the Opposition. Where any such amendment affected ethnic Fijian land, customs or customary rights, the majority in the senate had to include at least three quarters of the nominees of the Great Council of Chiefs.

THE 1987 MILITARY COUP – FIJI BECOMES A REPUBLIC

[11] In April 1987 the Labour-National Party Coalition won the general election and Dr Timoci Bavadra became Prime Minister. Although he was an ethnic Fijian there were a majority of Indo Fijian Cabinet ministers. This alarmed certain of the ethnic Fijian population and on 14 May 1987 the RFMF overthrew the elected government. The Governor General resumed government in the name of the Queen on 20 May 1987. However, on 25 September 1987 a second military coup was staged.

[12] The coup leader, Lieutenant Colonel Sitiveni Rabuka ('Colonel Rabuka'), became head of a Council of Ministers and, on 7 October 1987, he abrogated the 1970 Constitution, proclaimed Fiji a Republic, and appointed himself as head of state. The Governor General resigned eight days later. On 5 December 1987, following three months of military rule, Ratu Sir Penaia Ganilau was appointed Fiji's first President.

[13] Fiji's membership of the Commonwealth lapsed, development aid was suspended and the economy's main sources of income, sugar and tourism, were severely affected. Over the next 15 years approximately 50,000 people, mostly skilled workers and professionals, and mostly Indo Fijians, emigrated. In 2009 Indo Fijians may make up only 35 per cent of the population of Fiji.

THE 1990 CONSTITUTION AND THE 1992 ELECTION

[14] In 1990 a new Constitution (‘the 1990 Constitution’) was proclaimed by the Constitution of the Sovereign Democratic Republic of Fiji (Promulgation) Decree 1990. It contained provisions designed to further protect ethnic Fijian interests. It strengthened the position of the Great Council of Chiefs by giving it the right to appoint the President, and it reserved the position of the Prime Minister and the Chairman of the Public Service Commission to ethnic Fijians. It provided that the President consult with the Great Council of Chiefs before nominating 25 of the 34 senators and required that they be ethnic Fijian or Rotuman. It excluded any right to challenge in the courts the decisions of the Native Land Trust Board in relation to custom and ownership of land and it changed the distribution of seats in Parliament to ensure a bias in favour of ethnic Fijians.

[15] Colonel Rabuka, as leader of the Soqosoqo ni Vakavulewa ni Taukei Party-Party of Policy Makers for indigenous Fijians (`SVT'), became Prime Minister following the 1992 elections held under the 1990 Constitution.

THE 1997 CONSTITUTION

[16] In 1997 a new Constitution ('the Fiji Constitution'), being the Act to alter the Constitution of the Sovereign Democratic Republic of Fiji Act 1997 (it became effective on 28 July 1998, pursuant to Act No 5 of 1998), was proclaimed. It had been passed unanimously in both Houses of Parliament and endorsed by the Great Council of Chiefs.

[17] Section 98 of the Fiji Constitution provides that a member of the House of Representatives who, in the President's opinion, can form a government that has the confidence of the House of Representatives is to be appointed the Prime Minister. The Prime Minister, thus appointed, is then required pursuant to s99(5) to invite all the parties with more than ten per cent of the seats to come into Cabinet and to be proportionally represented there.

[18] Sections 50 to 63 of the Fiji Constitution provide for the election by popular franchise of members of the House of Representatives for five-year terms. Section 90 provides for the appointment of a President for five-year term by the Great Council of Chiefs (see s116, which provides for the continuance of this body) following consultation with the Prime Minister.

[19] Prior to 1997 elections had been held under the 'first past the post' system. Under s54 of the Fiji Constitution the electoral system is based on preferential voting and, pursuant to s56, voting is compulsory. In addition, pursuant to s51 there has been a change in the arrangement and distribution of the 71 seats in the House of Representatives to provide for 46 communal seats and 25 open seats. 24 of the communal seats are for ethnic Fijian and Rotuman voters, 19 for Indo-Fijians and 3 for remaining groups.

THE 1999 GENERAL ELECTION-MR CHAUDRY BECOMES PRIME MINISTER

[20] In May 1999 the first general election was held under the Fiji Constitution. A People's Coalition was successful, being returned with a total of 51 of the 71 seats. Within the Coalition, the multi-ethnic Fijian Labour Party ('FLP') was the largest party and its leader Mahendra Chaudry ('Mr Chaudry') became Prime Minister. Mr Chaudry was the first Prime Minister of Indian descent.

[21] The FLP victory was so comprehensive that Colonel Rabuka's SVT barely exceeded the ten per cent of the vote required for eligibility for invitation to Cabinet. In accordance with the Constitution Mr Chaudry offered the SVT positions in the ministry. The SVT made a counter-offer which was not accepted and consequently, at least on offer and acceptance principles, ended up in opposition. An offer to the Christian Democratic Party ('VLV') was accepted and the VLV joined the Chaudry government.

[22] The Fiji Constitution maintained privileges for ethnic Fijians. For example s185 provides that any attempt to alter certain Acts relating to the rights of ethnic Fijians must be passed three times in the House and the senate, and no vote will be deemed passed on the third reading in the senate unless it is supported by at least 9 of the 14 senators appointed on the recommendation of the Great Council of Chiefs.

THE 19 MAY 2000 CIVILIAN COUP-GEORGE SPEIGHT

[23] On 19 May 2000 a civilian, George Speight ('Mr Speight'), and a group of armed men occupied Parliament and held Prime Minister Chaudry, most Cabinet members and other members of the People's Coalition Party hostage. They claimed that the rights of ethnic Fijians were being eroded or threatened by the Chaudry government.

[24] On the same day President Ratu Sir Kamisese Mara ('President Mara') proclaimed a state of emergency and promulgated Emergency Regulations pursuant to the Public Safety Act (Cap 19).

[25] A breakdown of law and order ensued, particularly in Suva.

[26] On 27 May 2000 President Mara appointed the Minister of Labour, the Hon Ratu Tevita Momoedonu, as acting Prime Minister while the Prime Minister was unable to perform his functions. On the same day, acting on the advice of the acting Prime Minister and pursuant to s 59(2) of the Fiji Constitution, President Mara prorogued Parliament for six months. The acting Prime Minister then resigned that office.

[27] The situation continued to deteriorate and on 29 May 2000 the Commissioner of Police informed President Mara that he could no longer guarantee security. He requested the President to invoke the Public Emergency Regulations made pursuant to the Public Safety Act (Capt 19) and to ask the RFMF to perform all duties and functions of police officers.

THE 29 MAY 2000 MILITARY COUP-MR QARASE BECOMES PRIME MINISTER

[28] On 29 May 2000 the Commander informed President Mara that in his opinion the Fiji Constitution did not provide a framework for resolving the crisis and should be abrogated. The Commander then assumed executive authority as 'Commander and Head of the interim Military Government of Fiji'.

[29] President Mara declined to accept office as President under any new Constitution. Later that day the Commander promulgated a decree purporting to abrogate the Constitution ('Decree No 1'). There followed a decree ('Decree No 3') establishing an interim military government and stating that executive authority of the Republic of Fiji was vested in the Commander as head of the military government.

[30] On 4 July 2000 Decree No 10 was promulgated by the Commander. This decree established an interim civilian government with the Commander as head of government. By cl 10 the executive authority of the state was vested in the head of government. Mr Qarase was sworn in as Prime Minister of this government by the Commander on the same day, 4 July 2000.

[31] On 9 July 2000 the interim civilian government promulgated Decree No 19 (the Interim Civilian Government (Transfer of Executive Authority Decree) which provided for the appointment of an interim President and the vesting of executive authority in such interim President. The decree took effect on 13 July and on 14 July the Great Council of Chiefs appointed Ratu Josefa Iloilo, who had been Vice-President appointed under the Constitution, as interim President. Also on 9 July 2000 there was promulgated, Decree No 18, which purported to grant immunity from criminal prosecution and civil liability to George Speight and his supporters, subject to certain conditions, including the release of the hostages.

[32] On 14 July 2000 Mr Speight released the hostages. On 26 July 2000 Mr Speight was arrested and charged with treason. He was subsequently convicted and sentenced to death, later commuted to imprisonment for life.

[33] On 28 July 2000 interim civilian government ministers, including Mr Qarase as interim Prime Minister, were sworn in by the interim President and took office under the interim Civilian Government (Transfer of Executive Authority) Decree.

PRASAD

[34] Within days of Mr Speight's rebellion three High Court judges, namely the Chief Justice Sir Timoci Tuivaga and Justices Michael Scott and Daniel Fatiaki ('the three judges') gave advice to the President, the broad nature of which was that he could dismiss the Prime Minister and the mechanism by which it could be done ('the dismissal advice').

[35] Then, in early June 2000, Tuivaga CJ presented the Commander with a draft ′Administration of Justice Decree' which purported, inter alia, to abolish the Supreme Court and to increase the retirement age of the Chief Justice from 70 to 75. These provisions found their way into the Judicature Decree No 22 of 2000, promulgated on 17 August 2000 with retrospective effect from 13 July 2000.

[36] On 9 June 2000 the Fijian Law Society, in a publicly released letter, wrote to Tuivaga CJ expressing the strong view that the involvement of the judiciary in helping the military draft the Administration of Justice Decree was inconsistent with the position that the Fiji constitution had not been abrogated and that it was not the function of the judiciary to exercise legislative powers. The Law Society called upon the judiciary to dissociate itself from the military decrees, including the Administration of Justice Decree, and to make unequivocal statement that it maintained the continued existence of the Fiji Constitution.

[37] On 14 and 21 July 200, each of the three judges responded in writing attacking the Law Society. They did not defend the Fiji Constitution.

[38] On 4 July 2000 Chandrika Prasad, a farmer, filed a High Court action in the registry of Lautoka, the closer registry to his residence, seeking a declaration that the Fiji Constitution was still in force as the supreme law of Fiji. The senior judge in Lautoka was Justice Anthony Gates ('Gate J')

[39] In mid July 2000 Tuivaga CJ sent a memo to Gates J directing him to transfer the Prasad Case to Scott J in Suva. Gates J did not respond. Tuivaga CJ then brought an application for the case to be transferred to Suva but Gates dismissed the application, heard the case and on 15 November 2000, delivered judgment.

[40] In his judgment Gates J held that the attempted coup of 19 May 2000 had not succeeded and that the purported abrogation of the Fiji Constitution was not made in accordance with the doctrine of necessity and as such was of no effect. Gates J held that the Parliament was still in being and should be summoned by President Mara as soon as practicable; [2001] 1 LRC 665.

THE PRASAD APPEAL

[41] On 17 November 2000 the interim civilian government, led by Mr Qarase, filed a notice of appeal. Gates J's orders were stayed pending the hearing of the appeal.

[42] The appeal was heard by a five-judge Bench of the Court of Appeal in late February 2001. Judgment was delivered on 1 March 2001 and dismissed: [2001] 2 LRC 743.

[43] The doctrine of necessity, the Court of Appeal held, does not authorise permanent changes to a written Constitution let alone its complete abrogation. The Court of Appeal further held that a revolutionary regime should not be accorded legitimacy by the courts unless the regime has the people behind it and with it, the burden of proof of which is on the new regime. Mr Qarase gave evidence that there was a widespread perception of defects in the Constitution that ‘made inevitable the abrogation of the Constitution'. However, the Court of Appeal held that the interim civilian government had failed to prove real acquiescence on the part of the people. On the contrary, the evidence before the Court of Appeal suggested-

'that a significant proportion of the people of Fiji believe that the 1997 Constitution embodies and protects the ideals and aspirations of the different ethnic groups in Fiji. The material also indicates a widespread belief that there was no proper justification for its abrogation.' (See [2001] 2 LRC 743 at 772.)

[44] Accordingly, the Court of Appeal held that the Fiji Constitution had remained in force at all times and that president Mara remained President until 15 December 2000 when, the Court of Appeal found, he resigned, having informed Mr Qarase of his decision to accept a pension and gratuity as a retired President.

[45] The Court of Appeal made the following declarations ([2001] 2 LRC 743 at 774):

'(i) The 1997 Constitution remains the supreme law of the Republic of The Fiji Islands and has not been abrogated.

(ii) Parliament has not been dissolved. It was prorogued on 27 May 2000 for six months.

(iii) 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 s88 of that Constitution, the Vice-President may perform the functions of the President until 15 March 2001 unless a President is sooner appointed under s90.'

THE RESPONSE TO THE COURT OF APPEAL DECISION IN PRASAD

[46] On the day the Court of Appeal delivered its decision Prime Minister Chaudry called upon interim President Ratu Josefa Iloilo (who prior to the coup had been and therefore was Vice-President) as acting President to summon Parliament. Attached to his letter was a petition signed by 46 members of the House of Representatives. No action was taken on that advice but the Great Council of Chiefs met on 13 March 2001 and appointed Ratu Josefa Iloilo, as President of the Republic pursuant to s90 of the Constitution.

[47] President Iloilo, purporting to act under s109(1) of the Constitution, immediately dismissed Prime Minister Chaudry. On 14 March 2001, purporting to act under s109(2) of the Constitution, he appointed Ratu Tevita Momoedonu caretaker Prime Minister. Ratu Momoedonu was a member of the House of Representatives.

[48] On 15 March 2001, acting on the advice of the caretaker Prime Minister, the President dissolved the House of Representatives in terms of s59(2) of the Constitution. Ratu Tevita Momoedonu resigned as caretaker Prime Minister the same day. The following day the President appointed Mr Qarase, then a senator, as caretaker Prime Minister, purportedly pursuant to ss109(2) and 194(2)(b) of the Constitution.

THE THREE JUDGES, MR QARASE AND YABAKI

[49] As noted above, Mr Qarase was a senator, but not a member of the House of Representatives. This fact alone was likely to provoke a legal challenge. On 21 March 2001 Tuivaga CJ sent a letter to Gates J:

'I am writing to advise that no court action surrounding the appointment of the President of the Republic of Fiji and, the caretaker government may be accepted or entertained in the High Court of Lautoka. Any such court action should be dealt with in the High Court in Suva.'

[50] The challenge to the interim government of Mr Qarase came when the Citizens Constitutional Forum ('CCF') filed proceedings in Suva. Its chief executive officer was Reverend Akuila Yabaki. Tuivaga CJ assigned the matter to Fatiaki J.

[51] The CCF asked Fatiaki J to disqualify himself on the basis that he was one of the three judges who had drafted the dismissal advice. Fatiaki J demanded that the CCF prove that he was involved in the drafting of the dismissal advice. The CCF responded by filing: affidavits sworn by Byrne and Shameem JJ, which affidavits set out a series of meetings between the judges during May 2000, where the dismissal advice was prepared and discussed by the three judges: Citizen's Constitutional Forum v President [2001] FJHC 28.

[52] Byrne and Shameem JJ, it can be interpolated at this point, together with Gates J, supported strict compliance with the Fiji Constitution and opposed any involvement of the judiciary in governance arrangements in the aftermath of the 2000 coups. So did other judges, including Madraiwiwi J, who resigned as a judge on 6 October 2000. He was appointed Vice-President of Fiji on 3 December 2004 and held that position in December 2006.

[53] On 23 May 2001 Fatiaki J dismissed the application to disqualify himself and in doing so he criticised 'the clumsy attempts by my colleagues to undermine me in this present application.' However, Fatiaki J decided not to hear the proceedings in any event. Tuivaga CJ then allocated the proceedings to Scott J.

[54] On 11 July 2001 Scott J in Yabaki v President of the Republic of Fiji [2001], FJHC 119 held that in March 2001 President lloilo had lawfully dismissed Prime Minister Chaudry and lawfully appointed Prime Minister Qarase. Scott J made this finding on the basis of the ‘doctrine of necessity'.

THE 2001 ELECTION-MR QARASE BECOMES ELECTED PRIME MINISTER

[55] On 25 August 2001 a general election was held. Mr Qarase's Fijian People's Party ('SDL') won the largest number of seats, namely 32 of 71, and Mr Qarase was sworn in as Prime Minister.

[56] Mr Qarase, claiming that a multi-party Cabinet would be unworkable, declined to offer Mr Chaudry or any FLP members a place in his 18-person Cabinet. This was contrary to the clear provisions of the Fiji Constitution and another round of litigation ensued.

[57] On 25 July 2002, following the retirement of Tuivaga CJ, Fatiaki J was appointed Chief Justice.

[58] On 14 February 2003 the Court of Appeal dismissed the appeal in Yabaki [2003] FJCA 3 without agreeing or disagreeing with Scott J. The Court of Appeal said that the proceedings had been rendered moot by the 2001 general election. However, the majority made some important observations concerning the interpretation of those provisions of the Fiji Constitution dealing with the appointment and dismissal of the Prime Minister and the doctrine of necessity to which we shall presently refer.

[59] Subsequently Scott J was appointed to the Court of Appeal. The judges in the constitutional camp (including Gates and Shameem JJ) were marginalised. Gates and Shameem JJ were assigned to the Criminal Division. Byrne J's commission expired and was not renewed and the High Court at Lautoka was starved of judicial resources. Lautoka is the second city of Fiji and commonly referred to as the commercial capital. It is also the heartland of the FLP.

[60] Section 29(3) of the Fiji Constitution provides that 'Every person charged with an offence and every party to a civil dispute has the right to have the case determined within a reasonable time' but as this court observed in Woodstock Homes (Fiji Ltd) v Rajesh [2008] FICA 104 at [52], a case where a notice of motion to set aside a default judgment filed in March 2001 took over five years to be heard:

'What does emerge from this case and other cases before the Court of Appeal is that for a number of years, until at least 2006, the High Court in Lautoka was not provided with an adequate number of judges, and that such judicial resources as were provided were but a fraction of the resources that the High Court in Suva enjoyed. It is difficult to escape the conclusion that responsibility for this lies either at the feet of the relevant chief justices during this period or attorneys-general or the legislatures of the time.'

No Fijian law reports were published in the period 2002 to 2007.

MAY 2006 GENERAL ELECTION-MR QARASE RE-ELECTED

[61] Following a general election in May 2006 Mr Qarase was re-elected to Parliament and re-appointed as Prime Minister of Fiji by the President.

THE 2006 DISMISSAL OF THE PRIME MINISTER AND THE DISSOLUTION OF PARLIAMENT

[62] On 5 December 2006 the RFMF took control of the streets of Suva and the Commander purported to assume executive authority of the state. As detailed in the judgment of the High Court and the respondents' submissions, for 18 months prior to 5 December 2006 the RFMF and Mr Qarase's government were descending into a relationship of increasing ill-will and conflict (see High Court judgment at [34]).

[63] The Commander said that he was stepping into the President's shoes and he purported to dismiss Mr Qarase as Prime Minister and to appoint Dr Jona Baravilala Senilagakali as caretaker Prime Minister to advise the dissolution of Parliament. The Vice President, Ratu Joni Madraiwiwi, received a message from someone in the RFMF to the effect that he should leave the Vice-Presidential residence.

[64] On 6 December 2006 Dr Senilagakali signed an advice to the Commander for dissolution of Parliament. The Commander acknowledged the advice and ordered the dissolution of Parliament (see High Court judgment at [60]).

[65] On 22 December 2006 the Great Council of Chiefs met and issued a statement advising President Iloilo 'to continue to personally exercise executive authority in accordance with the Constitution'. The Great Council of Chiefs urged Mr Qarase to tender his resignation to President Iloilo and recommended that President Iloilo appoint an interim administration to hold elections within a stipulated time frame (see High Court judgment at [62]-[67].)

JANUARY 2007: THE PRESIDENT RATIFIES THE DISMISSAL, THE CHIEF JUSTICE IS SUSPENDED, THE VICE PRESIDENT RESIGNS

[66] On 4 January 2007 Dr Senilagakali tendered his resignation as Prime Minister to the Commander and later that day the Commander, in a televised address, purported to hand back executive power to the President. The Commander’s televised address is set out in full in the judgment below. It included:

'The RFMF's assumption of authority, through its Commander was predicated and supported in law. The Akuila Yabaki case had established through Justice Scott's ruling that the President had certain reserve powers under section 109(1) of the Constitution. In addition to this ruling Justice Scott also held that in some unusual or extreme situations a departure from the normal requirements of the Constitution is permitted. This departure or extra-constitutional steps are justified under the doctrine of necessity. Strictly speaking the decision of Justice Scott has not been overturned and therefore is binding and valid law' (See High Court judgment at [68].)

[67] Subsequently, President Iloilo addressed the nation and said:

'I know that the events of the past few weeks have been trying on all of us. In particular in early December we were at cross roads at which hard and decisive decisions needed to be made. I was, as has been noted by the Commander of the Republic of Fiji Military Forces, unable to fully perform my duties as I was prevented from doing so. I do not wish to elaborate further on this point but I can state that they were predominantly cultural. In any case, given the circumstances I would have done exactly what the Commander of the RFMF, Commodore Josaia Voreqe Bainirnarama, did since it was necessary to do so at that time. These actions were also valid in law. Therefore, I fully endorse the actions of the Commander of the RFMF and the RFMF in acting in the interest of the nation and most importantly in upholding the Constitution.' (See High court judgment at [69].)

[68] The president went on to say that he would shortly announce an interim government and he set out a ten-point mandate for that interim government which would include taking Fiji ‘to democratic elections after an advanced electoral office and systems are in place and the political and economic conditions are conducive to holding of such elections'. Legislation in the intervening period was to be made by promulgation.

[69] On 5 January 2007 President Iloilo appointed the Commander as interim Prime Minister and, from 8 January 2007, various Cabinet ministers and other state ministers, were appointed by the President acting on the advice of the interim Prime Minister. They were assigned responsibilities by the president, purportedly pursuant to s103(2) of the Fiji Constitution. (See High Court judgment at [70], [78]. See also the Ratification and Validation of the Declaration and Decrees of the Fiji Military government Decree 2007, Fiji Government Gazette 16 January 2007, vol 7, No 4.)

[70] On 3 January 2007 Fatiaki CJ received a letter from the Commander which stated in part:

'We thank you for agreeing to go on leave on full pay, effective immediately until further notice to allow a full and proper and unrestricted inquiry into the judiciary and the judicial system as a whole. The inquiry has been precipitated by the involvement of certain members of the judiciary in questionable activities since the events of 2000, the subsequent politicization of the judiciary, questionable appointments to the Bench in particular the Magistracy and the High Court and numerous complaints we have received on corruption, irregularities and gross inefficiency in the judicial system.'

[71] On 16 January 2007 Gates J was sworn in as acting Chief Justice. On 18 January 2007 Fatiaki CJ was formally suspended as Chief Justice. He resigned in December 2008 and Gates Ag CJ was then sworn in as Chief Justice.

[72] On 18 January 2007 the President, promulgated an unconditional grant of immunity to the Commander, officers and members of the RFMF for the period to 5 January 2007: see High Court judgment at [76]. On 26 January 2007 Vice President Madraiwiwi resigned.

JUSTICIABILITY

[73] The respondents contended, and the High Court accepted, that the purported exercise by the President of his powers was non-justiciable. The appellants submit that this contention may be readily disposed of by this court.

[74] It is submitted that it has been clear since the days of Lord Coke that even in jurisdictions without a written Constitution, review of the existence and scope of an asserted prerogative power is permitted by the courts (see Case of the Proclamations [1610] EWHC J22; (1611) 77 ER 1352 at 1354; A-G v de Keyser's Hotel [1920] UKHL 1; [1920] AC 508 at 545, 561, 563, 565; Burmah Oil Co (Burmah Trading) Ltd v Lord Advocate [1964] UKHL 6; [1964] 2 All ER 348 at 353, 365, 377, 384, 388-389, 395; Laker Airways Ltd v Dept of Trade [1976] EWCA Civ 10; [1977] 2 All ER 182 and Council of Civil Service Unions v Minister far Civil Service [1985] LRC (Const) 948 at 1014, 1023, 1025-1026, 1033-1034, 1038-1039).

[75] It is further submitted that in jurisdictions governed by written Constitutions, executive power typically derives its source from the text of the Constitution itself. (See, for example, art 1 in the United States of American Constitution and s61 of the Constitution of the Commonwealth of Australia.)

[76] In Fiji, s85 of the Fiji Constitution is the source of the President's executive power. It provides:

'This section establishes the office of the President. The executive authority of the state is vested in the President.'

[77] Accordingly, it is said any issue concerning the existence and scope of executive power is an issue concerning the proper construction of s85 of the Fiji Constitution. Put another way, whether a particular executive power exists and, if so, its ambit; can only be determined upon a proper textual interpretation of that document. (The first amicus curiae, the Fiji Human Rights Commission, also sought to give some prominence to s86 of the Fiji Constitution as the source of prerogative or reserve Power. However, we are of the view that any reserve powers of the President are to be found in the grant of executive authority under s85.)

[78] The consequences of a written Constitution creating the institutions of government with certain defined powers, and courts thereby invested with jurisdiction to adjudicate on whether the legislative and executive have acted within those powers, are: firstly, a fundamental change from parliamentary to constitutional sovereignty founded in people's consent; secondly, the roles of the common law and constitutional law are reversed and, thirdly, all law is governed by the Constitution, and therefore the common law cannot develop inconsistently with the Constitution. (See Theophanous v The Herald and Weekly Times Ltd [1994] 3 LRC 369[1994] HCA 46; , [1994] 182 CLR 104 at 126 and Pharmaceutical Manufacturers Association of South Africa [2000] ZACC 1; 2000 (2) SA 674 at [37]- [45].)

[79] The Fiji Constitution must be read in light of the common law (s3(b)), and the content of s85 executive power is informed by the common law (The Fiji Islands; Towards a United Future, Report of the Fiji Constitution Review Commission 1996. Reeves, Vakatora & Lal (Parliament of Fiji, Parliamentary Paper No. 34 of 1996) (`the Reeves Report'), para [12.13]), but it does not necessarily pick up all common law prerogatives. Some prerogatives may only be exercisable by a monarch or a monarch's representative. The right question is what is the scope of the s85 power: see Ruddock v Vadarlis [2001] FCA 1329, (2001) 110 FCR 491 and Pharmaceutical Manufacturers Case.

[80] The appellants have submitted that the existence and scope of a grant of executive power can be-and regularly is-reviewed by courts in this way. (See in Australia Farey v Burvett [1916] HCA 36; (1916) 21 CLR 433 at 455; Shaw Savill and Albion Co Ltd v Commonwealth [1940] HCA 40; (1940) 66 CLR 344 at 351, 354, 360 362, 364-366; Victoria v Commonwealth and Hayden [1975] HCA 52; (1975) 134 CLR 338 at 354-357, 363-364; Ruddock v Vadarlis [2001] FCA 1329; (2001) 110 FCR 491 at [183]- [185], [193]; in the United States of America this principle was recognised early in Marbury v Madison [1803] USSC 16; (1803) 1 Cranch 137 at 177. More recently see Youngstown Sheet and Tube v Sawyer [1952] USSC 74; (1925) 343 US 579 at 584-589, Clinton v Jones [1997] USSC 42; (1977) 520 US 681 at 703-705; Hamdi v Rumsfeld [2004] USSC 2730; (2004) 542 US 507 at 535-536, 552; US v Nixon [1974] USSC 159; (1974) 418 US 683; in Canada see Conrad v Canada (Prime Minister) (2001) 199 DLR (4th) 228 at [45], [49]-[50].)

[81] Section 120(2) of the Fiji Constitution provides:

'The High Court also has original jurisdiction in any matter arising under this Constitution or involving its interpretation.'

[82] In light of this provision it would be surprising if the existence and scope of the executive power or any other asserted power of the President could not be reviewed:

′Judicial review is the enforcement of the rule of law over executive action. It is the means by which executive action is prevented from exceeding the powers and functions assigned to the executive by law' (See Church of Scientology v. Woodward [1982] HCA 78; [1982] 154 CLR 25 at 70, cited with a approval by Gleeson CJ in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2004) 211 CLR 476 at [31].)

[83] A consequence of this grant of jurisdiction to the High Court of Fiji in matters arising under or involving the interpretation of the Fiji Constitution is that this court is given express jurisdiction to interpret and determine whether a purported power exercised by the President exists pursuant to s85 of the Fiji Constitution or otherwise (and see also s194(10)).

[84] We have carefully considered the respondents' submissions in relation to this issue. The respondents do not contend, as we understand their submissions, that as a matter of law this court cannot consider the scope of the executive power under s85 of the Fiji Constitution or whether the prerogative power has been abrogated by the Fiji Constitution. They and the appellants agree that the exercise of the discretion contained within a power such as is here contended for is not reviewable, but the respondents place emphasis upon the fact that the President acted bona fide. However, the appellants' arguments, as we understand them, are directed to the existence of the power, not the manner of its exercise.

[85] Therefore, to the extent that it is asserted by the respondents that the President had the power on 5 January 2007 to appoint the Commander as interim Prime Minister and on 8, 9 and 15 January 2007 to appoint various persons as interim ministers, and to ratify the dismissal of the Prime Minister and the dissolution of Parliament because a state of emergency existed, it does not appear to us to be in contention that the existence of this executive power is able to be reviewed by the court and is justiciable. (Insofar as the respondents rely upon an unreviewable power of the head of state arising dehors the Constitution, we deal with this contention subsequently.) What is non-justiciable is the manner of the exercise of that power. Thus, as the appellants put it, the court may say whether there was a power to appoint the Commander as Prime Minister. It may not, however, interfere with the President's choice of Prime Minister if that power exists. (Even in such a situation, one would have thought that the appointment of the Prime Minister under s98 would be justiciable if the appointee were not a member of the House of Representatives or could not conceivably have the confidence of that House.)

[86] We therefore propose to consider the constitutionality of what was done between 5 January and 15 January 2007. In order to do that it is necessary to refer to some of the relevant provisions of the Fiji Constitution.

RELEVANT PROVISIONS OF THE FIJI CONSTITUTION

[87] Significant amongst the provisions of the Fiji Constitution which have some bearing upon the matters which are here in dispute are the following:

Republic of the Fiji Islands

'1. The Republic of the Fiji Islands is a sovereign, democratic state.

Supremacy of Constitution

2(1) This Constitution is the supreme law of the State.

(2) Any law inconsistent with this Constitution is invalid to the extent of the inconsistency.

Interpretation of Constitution

3. In the interpretation of a provision of this Constitution:

(a) a construction that would promote the purpose or object underlying the provision, taking into account the spirit of this Constitution as a whole, is to be preferred to a construction that would not promote that purpose or object; and

(b) regard must be had to the context in which this Constitution was drafted and to the intention that constitutional interpretation take into account social and cultural developments, especially:

(i) developments in the understanding of the content of particular human rights; and

(ii) developments in the promotion of particular human rights ...

Legislative power

45. The power to make laws for the State vests in a Parliament consisting of the President, the House of Representatives and the Senate.

Way in which legislative power exercised

46(1) Subject to this Constitution, the power of the Parliament to make laws is exercised through the enactment of Bills passed by both Houses of the Parliament and assented to by the President.

(2) The President must not refuse to assent to a Bill duly presented for his or her assent.

(3) A law made by the Parliament does not come into operation before the date on which it is published in the Gazette ...

Term of House of Representatives

59. 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.

Writs for elections

60(1) Writs for the election of members of the House of Representatives are issued by the President on the advice of the Prime Minister.

(2) The writs for a general election issue within 7 days from the expiry of the House of Representatives or from the proclamation of its dissolution ...

President

85. This section establishes the office of the President. The executive authority of the State is vested in the President.

Head of State

86. The President is the Head of State and symbolises the unity of the State.

Commander-in-Chief

8.7. The President is the Commander-in-Chief of the military forces.

Vice-President

88(1) This section establishes the office of Vice-President.

(2) The Vice-President performs the functions of President if the President is absent from duty or from Fiji or is, for any other reason, unable to perform the functions of his or her office.

(3) If neither the President nor the Vice-President is available to perform a function of the President, it may be performed by the Speaker of the House of Representatives.

(4) If the office of President becomes vacant, a new President and Vice-President must be appointed in accordance with Part 2, but the incumbent Vice-President has the authority under this section to perform the functions of President, for a period of no longer than 3 months, pending the filling of the vacancy.

President acts on advice

96(1) Subject to subsection (2), in the exercise of his or her powers and executive authority, the President acts only on the advice of the Cabinet or a Minister or of some other body or authority prescribed by this Constitution for a particular purpose as the body or authority on whose advice the President acts in that case.

(2) This Constitution prescribes the circumstances in which the President may act in his or her own judgment.

Responsible government

97. Governments must have the confidence of the House of Representatives.

Appointment of Prime Minister

98. The President, acting in his or her own judgment appoints as Prime Minister the member of the House of Representatives who, in the President's opinion, can form a government that has the confidence of the House of Representatives ...

Responsibility of Ministers and Cabinet

102(1) The Cabinet is collectively responsible to the House of Representatives for the governance of the State.

(2) A Minister is individually responsible to the House of Representatives for all things done by or under the authority of the Minister in the execution of his or her office.

Functions of Ministers

103(1) Ministers (including the Prime Minister) have such titles, portfolios and responsibilities as the Prime Minister determines from time to time.

(2) On the advice of the Prime Minister, the President, by direction in writing, assigns to the Prime Minister and to each other Minister responsibility for the conduct of a specified part of the business of the Government, including responsibility for general direction and control over a branch or branches of the public service or over a disciplined Force, as the case may be.

(3) The Prime Minister has responsibility for any part of the business of the Government that is not specifically assigned under subsection (2).

(4) Nothing in this section limits provisions in this Constitution conferring on specified persons or bodies freedom from direction or control by any person or authority in relation to the performance of specified functions.

President to be kept informed

104. The Prime Minister must keep the President generally informed about issues relating to the governance of Fiji and must supply the President with such information as the President requests concerning matters relating to the governance of Fiji.

Vacation of office of Minister

105(1) Subject to subsection (2), the appointment of a Minister terminates if:

(a) the Prime Minister resigns in the circumstances set out in section 107;

(b) the Prime Minister is dismissed;

(c) the Minister tenders his or her resignation to the President; or

(d) the Minister ceases to be a member of the Parliament.

(2) If a Minister ceases to be a member of the Parliament because of the expiry or dissolution of the House of Representatives, he or she continues in office as a Minister until the next appointment of a Prime Minister.

Acting Ministers

106(1) The President may appoint a Minister to act in, the office of another Minister (including the Prime Minister) during any period, or during all periods, when the other Minister is absent from duty or from Fiji or is, for any other reason, unable to perform the functions of office.

(2) Notification of the appointment of an Acting Minister must be published in the Gazette.

Defeat of Government at polls or on floor of House

107. If:

(a) the Government is defeated at a general election; or

(b) the Government is defeated on the floor of the House of Representatives in a vote:

(i) after due notice, on whether the Government has the confidence of the House of Representatives;

(ii) that the Government treats as a vote of no confidence; or

(iii) the effect of which is to reject or fail to pass a Bill appropriating revenue or moneys for the ordinary services of the Government;

and the Prime Minister considers that there is another person capable of forming a Government that has the confidence of the House of Representatives, the Prime Minister must immediately advise the President of the person whom the Prime Minister believes can form a Government that has the confidence of the House and must thereupon resign.

Advice to dissolve Parliament by Prime Minister defeated on confidence vote

108(1) If a Prime Minister who has lost the confidence of the House of Representatives (defeated Prime Minister) advises a dissolution of the House of Representatives, the President may, acting in his or her own judgment, ascertain whether or not there is another person who can get the confidence of the House of Representative's (alternative Prime Minister) and;

(a) if the President. ascertains that an alternative Prime Minister exists-ask the defeated Prime Minister to resign, dismiss him or her if he or she does not do so and appoint the alternative Prime Minister; or

(b) if the President cannot ascertain that an alternative Prime Minister exists-grant the dissolution advised by the defeated Prime Minister.

(2) If the President appoints the alternative Prime Minister pursuant to paragraph (1)(a) but the alternative Prime Minister fails to get the confidence of the House of Representatives, the President must dismiss him or her, re-appoint his or her predecessor and grant that person the dissolution originally advised.

Dismissal of Prime Minister

109(1) 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.

(2) If the President dismisses a Prime Minister, the President may, acting in his or her own judgment, appoint a person as a caretaker Prime Minister to advise a dissolution of the Parliament.'

THE INTERPRETATION OF THE FIJI CONSTITUTION

[88] We approach this task by bearing in mind the requirement under s3 of the Fiji Constitution that a construction that would promote the purpose or object underlying the provisions, taking into account the spirit of the Fiji Constitution as a whole, is to be preferred to a construction that would not promote that purpose or object. We also propose to examine the question in the context in which the Fiji Constitution was drafted. (Courts in Fiji are, in principle, prepared to look at travaux preparatoires for assistance in statutory construction. See Auditor-General v Reserve Bank of Fiji [2008] FJHC 194.)

[89] The constitutional history of the Fiji Islands is set out in the preamble to the Fiji Constitution in the following terms:

'WE, THE PEOPLE OF THE FIJI ISLANDS, SEEKING the blessing of God who has always watched over these islands:

RECALLING the events in our history that have made us what we are, especially the settlement of these islands by, the ancestors of the indigenous Fijian and Rotuman people, the arrival of forebears of subsequent settlers, including Pacific Islanders, Europeans, Indians and Chinese; the conversion of the indigenous inhabitants of these islands from heathenism to Christianity through the power of the name of Jesus Christ; the enduring influence of Christianity in these islands and its contribution, along with that of other faiths, to the spiritual life of Fiji:

ACKNOWLEDGING our unique constitutional history:

(a) first, the Deed of Cession of 10 October 1874 when Ratu Seru Epenisa Cakobau, Tui Viti and Vunivalu, together with the High Chiefs of Fiji, signifying their loyalty and. devotion to Her Most Gracious Majesty, Queen Victoria, and their acceptance of the divine guidance of God and the rule of law, ceded Fiji to Great Britain, which cession was followed in November 1879 by the cession to Great Britain of Rotuma by the Chiefs of Rotuma;

(b) secondly, our becoming an independent sovereign state when Her Majesty Queen Elizabeth II promulgated the Fiji Independence Order 1970 under which the Fiji Constitution of 1970 came into being;

(c) thirdly, the abrogation of that Constitution in 1987 by the Constitution Abrogation Decree 1987;

(d) fourthly, after a period of 3 years, the giving to Fiji of the 1990 Constitution by His Excellency the President, Ratu Sir Penaia Kanatabatu Ganilau, Tui Cakau, GCMG, KCVO, KBE, DSO, KSt J, ED, with the blessings and approval of the Great Council of Chiefs;

(e) fifthly, the review of that Constitution undertaken under its provisions; and

(f) sixthly, the conferral by the High Chiefs of Fiji in their abundant wisdom of their blessings and approval on this Constitution:

RECOGNISING that the descendants of all those who chose to make their homes in these islands form our multicultural society:

AFFIRMING the contributions of all communities to the well-being of that society, and the rich variety of their faiths, traditions, languages and

cultures:

TAKING PRIDE in our common citizenship and in the development of our economy and political institutions:

COMMITTING ourselves anew to living in harmony and unity, promoting social justice and the economic and social advancement of all communities, respecting their rights and interests and strengthening our institutions of government:

REAFFIRMING our recognition of the human rights and fundamental freedoms of all individuals and groups, safeguarded by adherence to the rule of law, and our respect for human dignity and for the importance of the family,

WITH GOD AS OUR WITNESS, GIVE OURSELVES THIS CONSTITUTION.'

[90] That preamble, in setting out the various stages of the constitutional history of what is now the Republic of Fiji Islands, recites a number of matters of fundamental importance to the questions which we have to consider. Firstly, Fiji was ceded to Great Britain on 10 October 1874, and in the case of Rotuma in November 1879. Secondly, Fiji became an independent sovereign state when Her Majesty Queen Elizabeth II promulgated the Fiji Independence Order 1970 under which the Fiji Constitution of 1970 came into being. Thirdly, the fact that the Fiji Constitution of 1970 was abrogated by the Constitution Abrogation Decree 1987. Fourthly, that the 1990 Constitution was given to Fiji with the blessings and approval of the Great Council of Chiefs, and the High Chiefs of Fiji. Fifthly, that by the Fiji Constitution the people of Fiji committed themselves anew to living in harmony and unity, promoting social justice and the economic and social advancement of all communities, respecting their rights and interests and strengthening the institutions of government. Sixthly, adherence to the rule of law.

[91] The Fiji Constitution makes it clear that it is a document that has the sanction and support of all levels of society, and all of the diverse communities that live in these islands, with all of their faiths, traditions, languages and cultures.

[92] It appears to us that a Constitution with those aims and aspirations would wish to ensure that when it came to such a delicate matter as the dismissal of a Prime Minister, that the circumstances in which the Prime Minister could be dismissed would be clearly defined. By the time the Fiji Constitution had been drawn up, as appears from the facts set out above, there had already been the abrogation of one Constitution in 1987 and the establishment of military rule. It is clear that in the circumstances in which the Fiji Constitution was drafted, the People of Fiji wished, if at all possible, to avoid another such occurrence. So much is also obvious from the Reeves Report. (Previous decisions of the Fijian courts have also taken note of the Reeves Report in interpreting various provisions of the Constitution. See Bala v A-G [2005] FJHC 320 and Re the Constitution, Reference by HE the President [2002] FJSC 1. See also Pambula District Hospital v Harriman [1988] 14 NSWLR 387 at 4l0 per Samuel JA, where the court held '[i]t has always been open to the court to have regard to the historical setting of the statute and by that means to ascertain what the object of the legislature was'.)

[93] Section 109 of the Fiji Constitution deals expressly with the circumstances in which the President may dismiss a Prime Minister. It prescribes that the President may not dismiss the 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. It also goes on to prescribe in s109(2) that if the President dismisses a Prime Minister, the President may, acting in his or her own judgment, appoint a person as a caretaker Prime Minister to advise a dissolution of the Parliament. In relation to the appointment or dismissal of a Prime Minster, this and s98 are the only provisions that state that the President can exercise his own judgment. In the case of s98, that judgment is carefully confined, and in the case of s109 that judgment is for a very limited purpose.

[94] The question really is whether under the Fiji Constitution the President has a discretion to dismiss a Prime Minister in circumstances other than those set out in s109, and appoint another caretaker Prime Minister to advise a dissolution of Parliament and appoint an interim government, particularly in circumstances where it is said that an emergency situation has arisen. In our view, the answer to this question is to be found in s96(2), which provides: ‘this Constitution prescribes the circumstances in which the President may act in his or her own judgment’. This express Provision, in our view, makes it clear that under the Fiji Constitution it is not intended that the President, in the exercise of discretion, dismiss a Prime Minister in circumstances other than those set out in s109, and in effect establish an interim government. In expressing this opinion, we leave to one side, for the time being, any discussion of the doctrine of necessity discussed in Republic of Fiji Islands v Prasad [2001] 2 LRC 743.

[95] There is nothing novel in this view. The Court of Appeal in Yabaki [2003] FJCA 3 stated quite clearly:

'Section 96(2) limits the circumstances where the President may act on his or her own judgment to those circumstances prescribed by the Constitution. He may do so under s109(2) for example. He may not do so under s109(1). Nor is some external apprehension by the President, outside of a vote of no confidence in the House, that a Prime Minister does not have the confidence of a majority, a substitute for what is required by s109(1).'

(In expressing this view the majority distinguished the decision of Adegbenro v Akintola [1963] 3 All ER 544, where the Governor had a power to dismiss the Premier where it appeared the Premier no longer commands the support of a majority of the members of the House of Assembly.)

THE EXISTENCE OF A PREROGATIVE OR RESERVE POWER TO DISMISS THE PRIME MINISTER

[96] The judgment of the High Court concludes that the President had a prerogative power, because an emergency had arisen, to rule directly until suitable elections could be conducted, which power included a power on the part of the President to dismiss the Prime Minister, dissolve the Parliament and to appoint ministers, including the Commander as Prime Minister in the interim (see High Court judgment at [173]).

[97] There is no doubt that in earlier times the monarchs of Great Britain exercised a prerogative power of dismissal with respect to the Prime Minister. This power was examined in detail in Evatt The King and his dominion governors: a study of the reserve powers of the Crown in Great Britain and the Dominions (1st edn), 1936; 2nd edn, 1967) written in 1936, not long after the dismissal of the Lang government by Sir Phillip Game, the Governor of New South Wales. In that work, Evatt examines Dicey's treatment of the Crown's reserve power of dismissal in the passages set out below. (For an account of Melbourne's discussions with William IV see Melbourne by Lord David Cecil (1966), pp 266-267). We have made extensive reference to Evatt's writings in this judgment because they seem particularly apposite to the situation as it exists in Fiji today. Evatt says (pp 102-107):

"Dicey treats the action of King George III in the dismissing of Fox and North as an appeal "from the. sovereignty of Parliament... To [the] sovereignty of the people." He adds: "Whether this appeal be termed constitutional or revolutionary is now of little moment; it affirmed decisively the fundamental principle of our existing Constitution that not Parliament but the nation is, politically speaking, the supreme power in the state." He deduces from it, and the precedent of William IV's dismissing Melbourne or compelling him to resign in 1834, the principle that the King may dismiss a Ministry commanding a parliamentary majority, and may subsequently dissolve the Parliament where there is "fair reason to suppose that the opinion of the House is not the opinion of the electors". He restates the condition as follows: "a dissolution is allowable or necessary, whenever the wishes of the legislature are, or may fairly be presumed to be different from the wishes of the nation." Dicey considers that the constitutionality of the dismissal and dissolution of 1834: "Turns at bottom upon the still disputable question of fact, whether the King and his advisers had reasonable ground for supposing that the reformed House of Commons had lost the confidence of the nation." He regards the two precedents as "decisive", i.e. as showing that the rules as to the dissolution of Parliament "are like other conventions of the constitution, intended to secure the ultimate supremacy of the electorate as the true political sovereign of the state." Dicey's discussion of William IV's action in 1834 is revealing. From the constitutional point of view he admits that it was a "mistake". He adds "it was justified (if at all) by the King's belief that the House of Commons did not represent the will of the nation". He argues that if it is right for the King to dismiss ministers and dissolve Parliament when it is shown to be out of harmony with its constituents, "there is great difficulty in maintaining that a dissolution is unconstitutional simply because the electors do, when appealed to, support the opinions of their representatives". He concludes, therefore, that a compulsory dissolution against the will of the Ministry and Commons is constitutional "whenever there is valid and reasonable ground for supposing that their parliamentary representatives have ceased to represent their wishes". It is obvious that Dicey, endeavouring to unify and rationalize the two precedents of 1784 and 1834 under one governing principle, was faced with the great difficulty of reconciling the failure of William IV and Peel to gauge popular opinion with the success of George III and Pitt in 1784. Accordingly he is forced to conclude that ultimate electoral success is not required to justify the exercise by the King of the prerogative of dismissal and dissolution. So long as there is a "fair presumption", "valid and reasonable ground for supposing" that the Commons is out of step with its constituents, the King is justified in his action. The first difficulty which arises from this view of constitutional practice is, who is to decide whether there is fair, valid and reasonable ground for the supposition or presumption? At p.432 Dicey mentions "the King and his advisers" as the authority to decide this difficult question of fact. Such reference to "advisers" is necessarily to those Opposition leaders who have, ex hypothesi, to be summoned to office for the purpose of “accepting the responsibility” for the King's action in dismissing those who previously held the confidence of the King. What sources of information are to be tapped for the purpose of making a sound electoral forecast? The great resources of a political machine may be available, in which event the reports of Opposition canvassers may find a place in the material upon which a judgment is to be delivered. It is obvious that Dicey's doctrine, if carried out logically, must tend to place the Sovereign in the invidious position of consulting the Opposition leaders upon the question whether the proposed coup and rush election will be successful. It is quite clear that George III, and, to a lesser extent William IV, placed themselves in such a position. Further, according to Dicey, even if the coup is not successful, and ministers who have been dismissed from office by the King are returned triumphantly to their former office by the people, the latter have no reasonable cause of complaint so long as the King and the Opposition leaders had "reason to believe" that a moment had arrived when the government party was sufficiently unpopular to be rejected by the people. In his letter to The Times in September 1913, Dicey ventured to assert that this exposition of this reserve power of the Monarch has "assuredly never been controverted by any writer of authority". But in this connexion it has to be remembered that very special circumstances existed in 1784, and that no occasion even arose for a close examination of this aspect of the prerogative between 1834 and 1913-a period of nearly eighty years. Is the doctrine of Dicey justified when fairly analysed? It certainly assimilates the functions of the Monarch to that of a political prophet, although his serene and remote position necessarily prevents him from being armed with the soundest materials for such a forecast. Failure of the new Ministry at the elections would place the Monarch, to put it at the lowest, in "a position of some embarrassment". Under similar circumstances a Colonial governor is "reasonably supposed" to be liable to recall from office. If Dicey's test as to the existence of "reasonable ground for supposing" is taken, it leads to some absurdity. Picture the reassembling of the Commons under the leadership of a dismissed Ministry which is recalled to office after the elections. The Opposition leader will have to justify his action and that of the King by saying "We made a mistake - but I put it that William IV also made a mistake. I furnished to His Majesty a summary of reports from expert officials in my party organization. In their opinion we should have won. Moreover, as the people knew perfectly well that the King had intervened upon our side, we expected to rally all doubtful voters to our support. I ask for a finding that I did not act unreasonably in measuring the probability of electoral success." Such a defence would seem to contain its own refutation. It reduces to a question of mere negligence the correct standard of ministerial "responsibility". And what if the Commons considered that Opposition leaders had been negligent, and that there was not reasonable ground for thinking that the government formerly holding office would be turned out by the electors? It is difficult to escape the conclusion that a victorious Commons, the members of which had been put to very considerable trouble and expense for no purpose might be inclined to say: "These Opposition leaders voluntarily chose to accept 'responsibility' for the exercise of these prerogatives. Let them assume some real responsibility, and let us proceed to discuss sanctions." It is not difficult to imagine how, under the modern conditions of political warfare, the device of impeachment or some analogous proceeding might again be brought into play. The overwhelming success of Pitt and George III in 1784 has been allowed to convey a false impression as to the situation of the Monarch in relation to the modern democracy. The coalition of North and Fox was regarded by the people as being little short of infamous. In 1782 Fox had suggested that North should be brought to the scaffold. In the circumstances the fusion of the pair shocked the conscience of the country and gave the King a unique opportunity of revenging himself. Moreover, Fox’s India Bill, which was one of the immediate issues of the election of 1784, involved a delegation of governing powers over India and an enormous patronage to a commission which might be out of the reach both of the King and a future Cabinet. Further, the Bill was regarded as a general attack upon property rights, the East India Company broadcasting the slogan, "Our property and charter are invaded, look to your own". Pitt's superb parliamentary tactics, in refusing to dissolve immediately upon the dismissal of his predecessors in December 1783, played an important part in the election results. Threatening to stop the supplies, the Commons gradually weakened and faded to adopt Fox's suggestion. Having displayed its fear of avoiding an ultimate issue with the Monarch, its prestige gradually vanished. In the circumstances success for North and Fox at the elections would have been miraculous. If it is dangerous to draw any sweeping general principle from such a modern precedent as that of 1913, or from the precedent of 1834, it is quite impossible to do so from the coup of George III one hundred and fifty years ago, in which, according to one distinguished authority, Pitt became Prime Minister by "a violent exercise of prerogative".

[98] Evatt then went on to consider historical precedents up until 1936 and the views of a number of distinguished text writers on the subject and expressed the following views (p 286):

'Amongst the text writers on the subject of constitutional conventions those interested will usually be able to find support for (or against) almost any proposition.'

[99] Evatt also dealt with some practical aspects of the problem of defusing the reserve powers in the following passage (p 286):

'The difficulties existing in England and the Dominions include the following: (1) It is not certain to what extent, and under what conditions, the Sovereign or his representative possesses the right to refuse a dissolution of parliament to ministers, (2) The power of dismissal of ministers possessing the confidence of the majority of the popular Assembly is not precisely ascertained, (3) The power of the Crown or its representative to insist upon a dissolution against the will of Parliament and ministers alike, a power connected with (2), is also undefined (4) The conditions of the exercise of the prerogative of appointments of peers in the United Kingdom, cannot be precisely stated, (5) The ultimate right of the Sovereign or his representative to "veto" i.e. refuse assent to legislation, is still asserted to exist, (6) There is no clear understanding as to the precise constitutional relation between the Prime Minister or Premier on the one hand, and other ministers on the other. If the situation is allowed to continue without any alteration, the Sovereign, Governor General and the Governor will have to determine for themselves, on their own personal responsibility, not only what the true constitutional convention or practice is, but also whether certain facts exist, and whether they call for the application of the rule which is alleged to be derived from, and consistent with, all constitutional precedents. Even if, upon the given occasion, no extraordinary exercise of the Crown's prerogative results, the possibility of its exercise has always to be reckoned with, and this inevitably creates uncertainty and distrust.'

[100] These problems became topical again in Australia in 1975 as a result of the well-known circumstances surrounding the dismissal of Mr Whitlam by the Governor General Sir John Ken. (See, eg Sir Garfield Barwick SirJohn did his Duty (1983), D P O'Connell ‘The Dissolution of the Australian Parliament' (1976) The Parliamentarian at 1-14 and Cooray Conventions, The Australian Constitution and the Future (1979).) That debate gave rise to the expression of a number of different views as to the circumstances in which a Prime Minister could be dismissed under s64 of the Australian Constitution (Cooray, p 51), issues which still continue to have a divisive effect in the Australian community.

[101] Since that time, the Report of the Advisory Committee on Executive Government to the Constitutional Commission in 1987 set out the principle in relation to the Commonwealth level of government in Australia in the following passage:

'The Governor General can dismiss the Prime Minister for persisting in grossly unlawful or illegal conduct, including a serious breach of the Constitution, when the High Court has declared the matter to be justiciable and the conduct to be unlawful, illegal or a breach of the Constitution, or when the High Court has declared that the matter is not justiciable, and the Governor General believes that there is no other method available to prevent the Prime Minister or the government engaging in such conduct.' (See Advisory Committee to the Constitutional Commission. Executive Government (1987), p 42.)

(Note also the minority view of the Committee that the Governor General may dismiss the Prime Minister in cases in which he believes that there is no other method available to prevent the Prime Minister or his government engaging in substantially unlawful action, including a substantial breach of the Constitution, or other conduct contrary to the principles of democratic government. See also Twomey The Constitution of New South Wales (2004), pp 645-646 and Final Report of the Constitutional Commission (1988), vol 1, 2.214-2.224)

[102] What this brief review of the subject shows is that the circumstances in which the monarch, or the Governor General or Governor of a British Dominion or colony, can exercise the reserve powers of the Crown to dismiss a Prime Minister or Premier were, and still are, a matter of great and ongoing controversy and, in particular, the question whether the monarch or a representative of the Crown had any power to dismiss a Prime Minister who had the confidence of the lower house and no difficulty in obtaining supply is a controversial one. (As to the changing nature of the rights, powers and immunities of the Crown see Gairy v AA-G [2001] UKPC 30, [2001] 4 LRC 671 at 682-683.)

[103] Moreover, at the time that the Fiji Constitution was being drafted Fiji had been beset by a major political upheaval and the abrogation of its existing Constitution. All the more reason, in our opinion, that the drafters of the Fiji Constitution, and the Fijian people, in adopting the Fiji Constitution as amended in 1997, would have wanted as much certainty as they could obtain in the provisions dealing, in particular, with the dismissal of a Prime Minister.

[104] In that context, it is clear that the drafters of the Fiji Constitution have given very specific attention to the circumstances in which the President can dismiss the Prime Minister. Pursuant to s98, referred to above, it is the President who appoints the Prime Minister. That person has to be a member of the House of Representatives who, in the President's opinion, can form a government that has the confidence of the House of Representatives. The opinion referred to is one on which, pursuant to s96(2), the President is entitled to bring to bear his or her own judgment. Normally however, there would not be much controversy about who the appropriate candidate would be. It would necessarily be the leader of the party which had a majority in the House of Representatives, as it would only be that person who could form a government that had the confidence of the House of Representatives.

[105] Section 109, also referred to above, deals with the circumstances in which the Prime Minister can be dismissed. Those circumstances are defined as being those where the government fails to get, or loses the confidence of the House of Representatives, and the Prime Minister does not resign nor get a dissolution of the Parliament. In those circumstances, if the President dismisses a Prime Minister, the President may, acting in his or her own judgment, appoint a person as caretaker Prime Minister to advise a dissolution of the Parliament. In that provision, that person is not expressly required to be a member of the House of Representatives.

[106] The Fiji Constitution is silent on other circumstances in which the President may dismiss a Prime Minister. This cannot have been unintended, nor could the express reference in s96(2) to the Fiji Constitution prescribing the circumstances in which the President may act in his or her own judgment have been unintended. Clearly, the Fiji Constitution intended to delineate as precisely as possible the circumstances in which the President could dismiss the Prime Minister. Those circumstances do not, in our opinion, include circumstances other than those set out in s109 of the Fiji Constitution.

[107] The respondents contend that the main fallacy in the appellants' written submissions is to suggest that the President is, as a matter of textual constitutional interpretation, pro tanto, limited by the terms of the Fiji Constitution. But surely that is the effect of the provisions we have referred to. The Fiji Constitution is supreme (s2). The President acts on advice (s96). Governments must have the confidence of the House of Representatives (s97). The Fiji Constitution prescribes the circumstances in which the President may act in his or her own judgment (s96(2)).

[108] Since the decision of Scott J in Yabaki there appears to have been a view, not sufficiently displaced by the Court of Appeal's decision in that case, that notwithstanding the express terms of the Fiji Constitution, including the stipulation that the President acts on advice, the President has some overriding power to dismiss the Prime Minister and form a new government in circumstances of what has been described variously as a crisis or an emergency or where it is perceived that the Prime Minister no longer has the confidence of the nation or the armed forces.

[109] While there was a time in English constitutional history when the monarch had more ample powers to dismiss a Prime Minister than is the case today, and while there is certainly authority which supports the right of the executive to intervene in a crisis in the United Kingdom, the right of the President in Fiji to do anything otherwise than on advice is strictly limited by the Fiji Constitution.

[110] Nonetheless; we now proceed to consider the question of whether there is such a prerogative power in Fiji, as this was the basis of the decision of the High Court.

THE RELEVANCE OF THE PREROGATIVE

[111] Fiji is now a Republic, as distinct from countries such as New Zealand and Australia which still retain the Crown as head of state. What 'reserve' powers, therefore, does the President have to dismiss the Prime Minister or to appoint persons other than the elected representatives of the people to positions of power in Fiji?

[112] In the case of a Republic it is by no means clear to us that the prerogative powers would continue in existence after the adoption of a detailed written Constitution such as that which has been adopted for the Republic of Fiji. In such a case, it is our opinion that the relevant question would be what is included in the executive authority of the state vested in the President by s85 and possibly s86 of the Fiji Constitution, what other discretions are vested in the President by the Fiji Constitution, and whether the implication of some other power of dismissal would be consistent with the Fiji Constitution.

[113] In expressing this view, we have considered the submissions addressed to us by the first amicus curiae, the Fiji Human Rights Commission, based in part upon United States authority such as United States v Curtiss-Wright Export Corp (1936) 299 US .304 at 316 to the effect that all heads of state, whether or not their positions derive from a monarchy, possess prerogative power, apart from other powers they may have been provided with under national laws. However the submissions of the second amicus curiae, the CCF, make clear that that decision does not support the proposition for which it is cited, and deals with the powers of the United States federal government on the international stage deriving from international law, and held that presidential power must be exercised in accordance with the Constitution: [1936] USSC 159; (1936) 299 US 304 at 317-320.

[114] The judgment of the High Court does not take the approach we have outlined above. Having referred to the President's role under the Fiji Constitution (High Court judgment at [131]-[132]), it refers to the absence of any specific mention of the prerogative, the fact that the prerogative travelled to the colonies, and to authorities such as British Coal Corporation v R [1935] AC 500 at 519, which confirm the principle that the prerogative cannot be restricted or qualified save by express words or necessary intendment. (See also Ruddock v Vadarlis [2001] FCA 1329; (2001) 110 FCR 491 at [33]- [41], [176]-[198]) The respondents' submissions adopt the same approach.

[115] The absence of any reference to the prerogative is not conclusive, but is a matter to which we shall return. Nor is it in doubt that the prerogative travelled to the colonies.

[116] The judgment of the High Court refers (High Court judgment at [119]-[123]) to the continuance of prerogative powers in Fiji. Reference is made to Halsbury's Laws of England to the following effect:

'The Prerogative is not confined to the British Islands, but extends to all parts of the Commonwealth of which the Queen is monarch as fully in all respects as to England, unless otherwise prescribed by United Kingdom or local enactment.' (See Halsbury's Laws of England (4th edn, reissue 1996), para 374.)

(See also Kielley v Carson [1842] EngR 593; (1842) 4 Moo PC 63 at 85.)

[117] Reference is also made in the judgment of the High Court to the decision of A-G of Fiji v DPP [1983] 2 AC 672 at 678, where the Privy Council said:

'Executive authority is vested in Her Majesty and, save as otherwise provided in the Constitution, it may be exercised on her behalf by the Governor-General, either directly or through officers subordinate to him ...'

[118] The difficulty with the reference to this decision as being relevant to the current circumstances is that it was a decision made at a time subsequent to the promulgation of the Fiji Independence Order 1970, under which the 1970 Constitution came into being, but prior to the abrogation of the Constitution in 1987 by the Constitution Abrogation Decree 1987. At the time in question Fiji was a constitutional monarchy and it fitted the model of Her Majesty's other dominions and colonies, in which the Governor General or the Governor exercised certain reserve powers derived from the prerogative.

It provides no basis for the suggestion that once Fiji became a Republic, those prerogative powers were vested in the President under the Fiji Constitution, independently of the specific provisions thereunder or in opposition thereto.

[119] The submissions of the second amicus curiae, the CCF, are pertinent in this regard. In common with Fiji the Republic of South Africa is a former British colony and in common with the Fiji Constitution the Constitution of South Africa declares that it is the supreme law of the state (s2 of the Constitution of the Republic of South Africa 1996) and vests the executive power of the state in the President as head of state (ss83 and 85 of the South African Constitution).

[120] In President of the Republic of South Africa v Hugo [1997] ZACC 4; 1997 (4) SA 1 at [8] the Constitutional Court of South Africa held that while the powers vested in the President under the then interim South African Constitution 1993 have their historical antecedents in the prerogative power of the Crown, there were no powers derived from the royal prerogative conferred on the President other than those set out in the Constitution.

[121] The judgment of the High Court (High Court judgment at [127]-[136]) refers to a number of authorities including the British Coal Corporation [1935] AC 500 at 519, in which the Privy Council considered whether the prerogative right of appeal from the province of Quebec to the King in Council had been effectively abrogated by the Dominion legislature. It was held that it had. Viscount Sankey LC gave the following advice on behalf of the panel ([1935] AC 500 at 519):

'No doubt the principle is clearly established that the King's prerogative cannot be restricted or qualified save by express words or by necessary intendment. In connection with Dominion or Colonial matters that principle involves that if the limitation of the prerogative is by a Dominion or Colonial Act, not only must that Act itself deal with the prerogative either by express terms or by necessary intendment but it must be the Act of a Dominion or Colonial Legislature which has been endowed with the requisite power by an Imperial Act likewise giving the power either by express terms or by necessary intendment.'

(And see Northern Territory v Arnhem Land Trust [2008] HCA 29, 82 ALJR 1099.)

[122] These principles are firmly established but, contrary to what is said in the judgment of the High Court, in our opinion the provisions of the Fiji Constitution have sought to limit clearly the circumstances in which the President can dismiss the Prime Minister, and for that matter, the circumstances in which the other ministers of the Crown can be dismissed, and the other discretions confided in the President. The words of limitation in s96(2) are not to be ignored. It is clearly intended by that provision to limit precisely the discretions of the President to the circumstances prescribed in the Fiji Constitution.

[123] The respondents' submissions contend that notwithstanding that the Fiji Constitution has provided in express terms for the circumstances that regulate the appointment and dismissal of the Prime Minister, the prerogative to act in a national security situation is capable of co-existing with the limited discretion prescribed by the Fiji Constitution for the appointment and dismissal of Prime Ministers and other provisions to which we have referred. But s187 of the Fiji Constitution confers legislative power upon the Parliament to confer emergency powers on the President. Moreover, s163 of the 1990 Constitution, which it replaced, conferred powers upon the President to issue a 'Proclamation of Emergency' if the President was satisfied that a grave emergency existed whereby the security or economic life of Fiji is threatened. This makes it inherently unlikely that the President, personally, acting otherwise than on advice, has those powers without such a conferral under the 1997 Constitution. Such an implication is also at odds with s2 and s96 of the Fiji Constitution. Moreover we are unpersuaded by the respondents' submissions that the travaux préparatoires lead to an opposite conclusion. To the contrary; they positively reinforce our views. (See the Reeves Report Chs 16, 19 and in particular Recommendations 664, 666.)

[124] We should perhaps add that the above discussion also deals with the point that there is an absence of any reference to the prerogative. Quite apart from anything else, s2 of the Fiji Constitution makes clear that any law inconsistent with the Fiji Constitution is invalid to the extent of the inconsistency, and that would, include the prerogative if it permitted dismissal of the Prime Minister otherwise than as set out in the Fiji Constitution.

[125] Moreover, there is a real question in any event as to the relevance of cases such as British Coal Corporation v R [1935] AC 500. That case concerns the interaction between legislative and executive power, and whether the legislature intended to abrogate the existing prerogative. It is not a case of concerning the construction of a constitution. The point was well made by Higgins J in Amalgamated Society of Engineers v Adelaide Steamship Co Ltd [1920] HCA 54; (1920) 28 CLR 129 at 164:

'The true position I take to be that the rule as to the Crown's rights not being affected by an Act unless by express words or by necessary implication applies not to a Constitution but to the Acts made by the Parliament under the powers of the Constitution.'

(See also Evatt The Royal Prerogative (1987), pp 46-47. This also deals with submissions in relation to construction based on A-G v De Keyser's Royal Hotel Ltd [1920] UKHL 1; [1920] AC 508; see also Jarratt v Comr of Police (NSW) [2005] HCA 50; (2005) 224 CLR 44 at [85], R (on the application of Mahmood) v Royal Pharmaceutical Society of Great Britain [2001] EWCA Civ 1245; [2002] 1 WLR 879 and Ruddock v Vadarlis [2001] FCA 1329; (2001) 110 FCR 491), where the relationship between a statute and the prerogative is discussed.)

[126] A further matter referred to in the judgment of the High Court is the absence of. reference to reserve powers of the President in matters of the prerogative and, in particular, defence of the realm, national security, and of securing the peace, protection, and safety of the people. (See High Court judgment at [134]-[136].)

[127] However, in relation to the specific subject matter of the power of the President to dismiss the Prime Minister, the Fiji Constitution is quite explicit in providing a narrow basis for the exercise of those powers in relation to the defence of the realm, s87 provides that the President is the Commander in Chief of the Military Forces. As to the other points made, in our respectful opinion, this is far too narrow a view. It has a compact (ss 6-7). It deals with questions of citizenship (ss8-20). It contains a Bill of Rights which binds the legislative, executive and judicial branches of government at all levels, and all persons performing the functions of any public office which includes provisions dealing with protection against compulsory acquisition of property (s40). The manner in which the legislative power may be exercised is strictly controlled, including absence of any discretion vested in the President to refuse to assent to a Bill duly presented for his or her assent (s46(2)). The senate has a limitation on its powers with respect to money Bills which has the consequence that a power of dismissal arising because supply was blocked by the upper house would not arise (s49). There are the provisions in relation to executive government previously referred to including limits to the term of office of the President to five years plus a further term of five years (s91). The President and Vice President may be removed from office (s93). It is expressly provided that governments must have the confidence of the House of Representatives (s97), not, as Dicey would have it, the confidence of the nation. The prerogative of mercy, a well-recognised example of the exercise of prerogative power, is also dealt with in the Fiji Constitution (s115) as is the appointment of ambassadors (s149). (And see Quick and Garran Annotated Constitution of the Australian Commonwealth (1901), pp 322-323, where a list of examples of the prerogative is given., virtually all of which are dealt with in the Constitution; see also Evatt The Royal Prerogative (1987), pp 29-31.) It is clearly provided that the President acts on advice and that the Fiji Constitution prescribes the circumstances in which the President may act in his or her own judgment (s96).

[128] All of the above is inconsistent in our opinion with the continued existence of the prerogative in the President at least in relation to these subject matters or with the President retaining reserve powers to dismiss the Prime Minister which are not found expressly in the Fiji Constitution. To the contrary, and as specified in s2, there is a clear intention expressed to exclude laws inconsistent with the Fiji Constitution. Whilst there may be room for the implication of other powers pursuant to s85, or possibly s86, of the Fiji Constitution, that is of no relevance to this inquiry.

[129] We should also say that in considering the nature of the Fiji Constitution we have been considerably assisted by the Reeves Report, which to our opinion is entirely consistent with the approach we have adopted.

[130] Further, as to the question of national security referred to in the judgment of the High Court, apart from the provisions dealing with the police force and the military, s187, to which we have previously referred, confers legislative power upon the Parliament to make a law conferring power on the President, acting on the advice of the Cabinet, to proclaim a state of emergency in Fiji, or in a part of Fiji in such circumstances as the law prescribes. The section goes on to provide:

'... (2) The law may include provisions conferring on the President the power to make regulations relating to the state of emergency.

(3) A measure authorised by or under the law may derogate from the rights and freedoms set out in section 23, 24, 30, 31, 32, 33, 34 or. 37 (but not from other rights and freedoms set out in the Bill of Rights) if each of the following conditions is satisfied:

(a) the Cabinet has reasonable grounds for believing that, because of the emergency described in the proclamation of the state of emergency, the life of the State is threatened and the exigencies of the situation are such that they cannot be dealt with effectively without derogating from the Bill of Rights;

(b) the proclamation of the state of emergency is laid before the House of Representatives, is confirmed by it within 5 sitting days after the proclamation is made and remains in force at the time the measure is taken;

(c) the proclamation of the state of emergency remains in force for no longer than 3 months or for such further successive periods of up to 6 months as the House of Representatives determines;

(d) regulations relating to the state of emergency are laid before the House of Representatives within 2 sitting days after they are made and remain in force at the time the measure is taken.

(4) A law made under this section that is inconsistent with the obligations of the State under an international convention or covenant is invalid to the extent of the inconsistency.

(5) Regulations made pursuant to subsection (2) remain in force only so long as the proclamation of the state of emergency remains in force.'

[131] Part of the reasoning of the judgment of the High Court rests upon a number of decisions which are said to demonstrate the nature and extent of two prerogatives, these being the power to preserve the state from civil strife and to act in an emergency to ensure the well-being and safety of the people. These include cases such as Bhagat Singh v King Emperor (1931) LR 58 IA 169, King Emperor v Bensari Lai Garma [1945] 1 All ER 210 and Ningkan v Government of Malaysia [1970] AC 379 at 390. However these are cases where under an Ordinance similar to that which can be made under s187 of the Fiji Constitution, a question arose whether there was in fact a state of emergency, a matter which was reposed in the discretion of the Governor General or other representative of the Crown. They are good examples of the principle that the exercise, as distinct from the existence of such a power, is not reviewable.

[132] In our opinion the existence of s187 is as clear an indication as there can be that national security matters were not matters which were left to the prerogative. The existence of an implied right in the President arising from the prerogative, acting otherwise than on the advice of the Prime Minister to dismiss the government, to dissolve the Parliament and establish an interim government in the face of an emergency, is inconsistent with that provision. And indeed, why does a matter of national security call for the dismissal of a Prime Minister and his ministers and the dissolution of Parliament? Under the Fiji Constitution it is he and his Cabinet who have the responsibility to lead the country through a crisis, and to advise the President in relation thereto. It is entirely unclear to us why the first thing called for in a time of national emergency is the dismissal of the Prime Minister and his government. This, we consider, exposes the real flaw in the argument for the respondents. It exposes the fact that what has occurred in this case and previous cases is simply a military coup or an unlawful usurpation of power.

[133] Cases such as Burmah Oil Co Ltd v Lord Advocate [1964] UKHL 6; [1964] 2 All ER 348, A-G v De Keyser's Royal Hotel Ltd [1920] UKHL 1; [1920] AC 508 and R v Home Secretary, ex p Northumbria Police Authority [1988] 1 All ER 556 at 572, 575 do concern the exercise of the prerogative and contemplate the co-existence of both prerogative and statutory powers. But, as was said by Lord Reid in, the first of these cases ([1964] 2 All ER 348 at 353):

'It is not easy to discover and decide the law regarding the royal prerogative and the consequences of its exercise.'

[134] One thing, however, is clear. Both Burmah Oil and De Keyser's concerned the appropriation or destruction of property by Her Majesty's armed forces in time of war and the liability of the Crown in right of the United Kingdom to pay compensation. In the United Kingdom control of the armed forces had been left to the prerogative, subject to the power of Parliament to withhold supply and to refuse to continue legislation essential for the maintenance of a standing army; and so also the waging of war: (See [1964] UKHL 6; [1964] 2 All ER 348 at 353-354 per Lord Reid.)

[135] What was said by Lord Upjohn in Burmah Oil [196412 All ER 348 at 397 to the effect:

'It is clear that the Crown alone must be the judge of the precise emergency and exact point of time when it is necessary to exercise the prerogative in order to defend the country against apprehended invasion or, indeed, to take steps to prepare the country for war against a foreign power.'

relates to circumstances which existed at a time of war, at a time when control of the armed forces had been left to the prerogative.

[136] R v Home Secretary, ex p Northumbria Police Authority [1988] 1 All ER 556 is interesting in this context. The court found that a prerogative of keeping the peace that existed in medieval times had not been surrendered by the Crown nor did the process of giving express or implied assent to the modern system of keeping the peace through the agency of independent police forces amount to a surrender of the prerogative: [1988] 1 All ER 556 at 576. However, under the Fijian Constitution, the relevant question in our opinion would be whether the executive power under s85 would include such a power independently of s187, or any legislation made thereunder, and in any event, even if there were such a power, could it be exercised only on advice by the President or at his discretion: In R v. Home Secretary the executive power was exercised by the Crown on the advice of the Secretary of state. The Queen herself would be somewhat surprised if she personally was asked to intervene in such a crisis, as the President has done in this case.

[137] In 1381 it was by no means unusual for the 15-year-old Richard II to intervene personally in the English Peasants' Revolt led by Wat Tyler. However in England, and in Fiji, the basis of their modern democratic societies has been laid, in England's case, by the development of conventions which govern the exercise of the Crown's prerogative, and in the case of Fiji, by the provisions of its written Constitution.

[138] Reference is also made in the judgment of the High Court to Crown of Leon (Owners) v Admiralty Comrs [1921] 1 KB 595, Laker Airways v Dept of Trade [1976] EWCA Civ 10; [1977] 2 All ER 182 at 192, Gairy v A-G [2001] 4 LRC 671 at [19], A-G v De Keyser's Royal Hotel [1920] UKHL 1; [1920] AC 508 at 565, Council of Civil Service Unions v Minister for Civil Service [1985] LRC (Const) 948 at 1025-1026 and R v Home Secretary, ex p Northumbria Policy Authority [1988] 1 All ER 556 at 575. We are of the view that these cases and other cases referred to in the respondents' submissions do not assist in the resolution to the current problem, for substantially the same reasons we have expressed above.

THE DOCTRINE OF NECESSITY

[139] In Republic of Fiji v Prasad [2001] 2 LRC 743 the Court of Appeal adopted what was said by Haynes P in Mitchell v DPP [1986] LRC (Const) 35 at 88-89 in the Court of Appeal of Grenada as to the circumstances which would justify an intervention by the President in a crisis. These conditions are set out in the judgment of the High Court (at [3]) and are to the following effect:

'I would lay down the requisite conditions to be that: (i) an imperative necessity must arise because of the existence of exceptional circumstances not provided for in the Constitution, for immediate action to be taken to protect or preserve some vital function to the State; (ii) there must be no such action reasonably available; (iii) any such action must be reasonably necessary in the interest of peace, order, and good government; but it must not do more than is necessary or legislate beyond that; (iv) it must not impair the just rights of citizens the sole effect and intention of which is to consolidate or strengthen the revolution as such.'

[140] In the judgment of the High Court it is recorded that the doctrine of necessity for a coup d'etat has not figured as a matter of dispute between the parties, and evidence and argument has not been directed to prove that issue. (See High Court judgment at [7].) In those circumstances we are of the view that, in light of the manner in which the case was conducted below, it is not possible for the respondents to justify what was done on 5 December 2006 and following by reference to the doctrine of necessity as established by Prasad. (We should note that in Yabaki v President [2003] FJCA 3 the majority were not prepared to consider whether Scott J was correct or not in applying the doctrine of necessity.) Neither party to this appeal sought to contend that Prasad is incorrect. One cannot deny the existence of such a principle, but its application to justify what is in effect a military coup is undoubtedly dubious.

[141] We should also say that based on the facts which are in evidence or which are notorious, that we can see no room for the application of the Prasad principle in this case, apart from its limited application as outlined to ensure that writs for fresh elections are issued. To this extent we disagree with the decision of the High court (at [157], [161]-[163]). Nor, in light of the position of the parties at trial, do we consider that it was appropriate to decide the case on that basis, if for no other reason than that evidence was not directed to that issue.

[142] In support of their submission that the President had the lawful power to appoint ministers in the period 5 to 15 January 2007, the respondents submitted that the ultimate source of the president's power was that of state necessity' in the time of an emergency or crisis (also described by the respondents as ‘ultimate reserve power’ a ‘prerogative power’ or ‘common law necessity’ (see Reference by HE the Governor General of Pakistan PLD (1953) FC 435)). The respondents submitted that this power was different from the doctrine of necessity as described by this court in Prasad and that state necessity empowered the President in times of emergency or crisis to act outside the strict terms of the Constitution. They also asserted in the alternative that such a power was an implied power under the Constitution. In effect the respondents were asserting the existence of an unreviewable emergency power outside the written terms of the Constitution.

[143] In our opinion, whilst such a power may exist elsewhere in the world, the framers of the Fiji Constitution intended, by the inclusion of Ch 14 (Emergency Powers) in the Constitution, to exclude the existence of any such power of state necessity as the source of the power for the President to act as he did in January 2007. In saying this we accept entirely that the doctrine of necessity as described by this Court in Prasad may well empower a President to act outside the terms of the Constitution but ultimately only for the purposes of restoring the Constitution. As we have said, the respondents cannot rely on the doctrine of necessity as described in Prasad given the manner in which this case was litigated by the parties in the High Court.

THE FACTS AND CIRCUMSTANCES OF THIS CASE

[144] The facts as outlined in the judgment of the High Court and as set out above and in the respondents' submissions, establish that there were a number of private and public exchanges between the Commander of the RFMF, on the one hand, and the Prime Minister, on the other hand, which were both hostile and acrimonious leading to a series of requests being made to the government of Mr Qarase by the RFMF which were not acceded to in late October 2006. Ultimately the circumstances as set out in the judgment of the High Court reveal that the RFMF took control of the streets of Suva on 5 December 2006 and the Commander assumed the executive authority of the state. This conduct was not engaged in at the time with the sanction of the President. The Commander of the RFMF then purported to exercise presidential powers and appoint Dr Senilagakli as a caretaker Prime Minister to advise the dissolution of Parliament.

[145] Thereafter the President purported to ratify the actions of the Commander of the RFMF and went on to appoint the Commander as interim Prime Minister, and to appoint other lay persons as ministers, to advise him in what was to be a period of direct presidential rule. He purported to ratify the call for fresh elections and he indicated that legislation in the intervening period, prior to the formation of a democratic government, was to be made by promulgation.

[146] The President thereafter gave directions for absolving the Commander and his men to facilitate their immunity and, purportedly exercising his own deliberative powers as President, promulgated an unconditional grant of immunity on 18 January 2007. The conduct was remarkably similar to the events of 2000 and 2001.

[147] None of what was done in the circumstances as thus described was, in our opinion, sanctioned by the Fiji Constitution. And if the President has the reserve or prerogative powers which have been relied on, notwithstanding the express terms of the Fiji Constitution, such powers of the President of Fiji do not extend to doing what was done in this particular case, even assuming the powers to have been exercised by the President of Fiji. In this regard we note the somewhat ambivalent submission by the first amicus curiae that it may be possible for the President to delegate his authority in much the same way as the Queen delegates her authority to her Governors General. In this case there was no prior delegation. It is a case of subsequent ratification and in any event, as the appellants point out, you cannot delegate power to do what you cannot do yourself. (See Firth v Staines [1897] UKLawRpKQB 86; (1897) 2 QB 70 at 75 and Boston Deep Sea Fishing and Ice Co Ltd v Farnham (Inspector of Taxes) [1957] 3 All ER 204 at 208-209.)

[148] Throughout the period when these events occurred Mr Qarase retained and had not lost the confidence of the House of Representatives, so no power on the part of the President, or the Commander of the RFMF on behalf of the president, existed to dismiss the Prime Minister. (There may have been a question as to validity of Mr Qarase's election as Prime Minister, bearing in mind that he effectively manoeuvred himself into that position by his participation in the events of 2000/ 2001. But that question was resolved in Yabaki v President [2003] FJCA 3 by the majority, when they found, in relation to the 2001 elections, that ‘[t]he elections were duly held despite any constitutional irregularities which may have preceded them’.)

[149] Another matter that requires mention is the reference to the possibility of military intervention. Evidence was given in relation to this and is set out at length in the respondents' submissions. The highest the evidence reached was that on 5 December 2006 foreign military intervention was being sought and that an Australian defence helicopter was operating within Fiji's EEZ. Assuming this to have been the case, and that such intervention was being sought by Prime Minister Qarase prior to the assumption of executive power by the Commander, the Commander and the RFMF could not act contrary to the wishes of the government of the day, unless what they were required to do, or what was being done, was contrary to the Fiji Constitution or the law of Fiji, in which even they should have sought access to the courts.

RELIEF TO BE GRANTED

[150] At the commencement of the hearing of the appeal the court asked the appellants' counsel to defer his submissions on the existence and scope of the prerogative, and on justiciability, until his reply, and in chief to address the court on relief bearing in mind that Mr Qarase appeared to have resigned, that his fidelity to the Constitution had come late in his political life, and it is now more than two years since the events of December 2006. The court also observed that whatever the constitutionality of the events the subject of these proceedings, as a matter of practical reality one cannot ignore the fact that there has been an interim government in Fiji for more than two years.

[151] During the morning of the first day of the appeal hearing counsel for Mr Qarase proferred to the court an undertaking ('the undertaking') which was modified on the second day and again on the third. The undertaking finally given was as follows:

'Mr first-named appellant Mr Qarase, by his Counsel, undertakes to the court that, in the event his position is vindicated in this court by declarations or other relief to the effect that his purported removal as Prime Minister and the purported dissolution of the House of Representatives by the President on 5 January .2007 were, both of them, contrary to the Constitution, unlawful and of no effect, then he will:

(a) immediately advise the President to dissolve the House of Representatives and to issue writs for the election of members of it under ss59(2) and 60(1) of the Constitution;

(b) at the same time, inform the President that he may, in considering the date to be fixed in the proclamation for the dissolution advised by Mr Qarase, take into account as he sees fit the state of affairs concerning the carrying out by the Constituency Boundaries Commission of review required by s53(1) of Constitution and pursuant to Part 2 of the Electoral Act 1998;

(c) draw to the attention of the President his discretionary power under s106(1) of the Constitution, upon or after Mr Qarase ceasing to be Prime Minister, to appoint as acting Prune Minister, if and as the President may choose, one of the ministers (will to be so appointed) who was in office on 5th December 2006 (being one who has not resigned as such or as a Member of the House of Representatives), such acting appointment being for the period ending when the President appoints a new Prime Minister pursuant to s98 of the Constitution after the election;

(d) thereafter immediately tender his resignation as Prime Minister to the President under s105(1)(c) of the Constitution; and

(e) thereafter immediately tender his resignation as a Member of the House of Representatives to the Speaker under s71(1)(a) of the Constitution.'

[152] In our opinion there are problems with this proposal. It assumes that notwithstanding all that has occurred, albeit unlawfully, including the dissolution of Parliament, the dismissal of Mr Qarase and his ministers, the pensioning off of a large number of members of the Parliament and the usurpation of the lawful authority of the Parliament for more than two years, the court should ignore what has in fact occurred. In our opinion at this time the dismissal of the Qarase government is simply incapable of being disregarded, reversed or undone.

[153] Moreover we do not consider that an undertaking to provide advice to the President giving as an option the appointment of one of the former ministers of Mr Qarase's government as caretaker Prime Minister would be appropriate in the circumstances. In the events that have occurred, there is a very real question whether Mr Qarase remains the Prime Minister of Fiji, notwithstanding that he has not formally resigned. He did seek a pension describing himself as former Prime Minister. Although we are of the view that his dismissal and the dissolution of Parliament were unlawful, at this point in time it is difficult to ignore the fact that, however unlawful, those events have occurred. (See Victoria v Commonwealth and Connor [1975] HCA 39; (1975) 134 CLR 81 at 120 per Barwick CJ and Yabaki v President [2003] FJCA 3 per Davies JA.)

[154] The respondents' position was that the court had a duty in granting any relief to minimise the risk of adverse public consequences and to take account of the risk of social upheaval and disruption if Mr Qarase was, in effect, restored to power, even for a limited period. The undertaking, it was said, was a recipe for chaos. Yet in response to a question from the court senior counsel for the respondents said that he had been unable to obtain instructions from the respondents as to the earliest date an election could be held.

[155] We are naturally concerned that no responsive answer was given to this inquiry and are unpersuaded that the undertaking itself would lead to chaos. Our concerns are more those of dealing with the practical reality facing the court after a period of unconstitutional government.

[156] In our opinion the only appropriate course at the present time is for elections to be held that enable Fiji to get a fresh start. We approach our consideration of questions of relief with this in mind.

[157] The relevant provisions of the Fiji Constitution appear to proceed on the basis that a Prime Minister will be duly appointed by the President pursuant to s98 of the Fiji Constitution, will vacate office only as contemplated by s 105, and will be dismissed only pursuant to be dismissed only pursuant to s109. None of that has occurred in this case.

[158] In order to issue writs for elections the President requires the advice of the Prime Minister under s60 of the Fiji Constitution. Although on one view the power of the President to appoint a person as a caretaker Prime Minister to advise a dissolution of the Parliament and the issuance of writs for an election only applies where a Prime Minster has been validly dismissed, we are of the view that giving the section a purposive construction in accordance with s3 of the Fiji Constitution, it can also cover circumstances such as this where the Prime Minster has been forcibly removed from office and no other Prime Minister has been validly appointed in his place.

[159] We are fortified in this view by the acceptance by the appellants that courts have and will take a pragmatic breach approach to repairing the damage after constitutional breaches: Re Manitoba Language Rights [1985] 1 SCR 721 at 724-725, 766-768; se also Yabaki [2003] FJCA 3.

[160] These principles would at least enable the President on the advice of an interim Prime Minister to dissolve Parliament and to issue writs for fresh elections under ss109 and 60 of the Fiji Constitution in circumstances (a) where the Prime Minister had ceased to hold office in circumstances not contemplated by the Fiji Constitution, (b) where he had resigned without a successor being appointed and (c) where no provision was made for that eventuality in the Fiji Constitution. To this limited extent, we believe we can take cognisance of the principle of necessity or the de facto doctrine for the purposes of these proceedings.

[161] Further support for the President's powers to issue writs for elections under s60 of the Fiji Constitution is to be found in s194, dealing with interpretation. This enables everything necessary or convenient to be done for, or in connection with the performance of his functions under the Fiji Constitution which would include appointing an interim Prime Minister to enable this to be done. (See also s194(2) of the Fiji Constitution.)

[162] Whilst of course we are not in a position to govern the exercise by the President of his discretion, it would seem to us that it would be advisable for the President to overcome the present situation by appointing a distinguished person independent of the parties to this litigation as caretaker Prime Minster, to advise a dissolution of Parliament, assuming it is not already dissolved, and to direct the issuance of writs for an election under s60 of the Fiji Constitution. This would enable Fiji to be restored to democratic rule in accordance with the Fiji Constitution and quash any arguments about the legitimacy of Mr Qarase's governments or the Republic as currently constituted. In recommending this course, we are also fortified by the public statements of both the President and the Commander that the mandate of the interim government was to uphold the Fiji Constitution and that the interim government was anticipated to take the people smoothly to the next elections. We urge the parties to these proceedings to co-operate with that process.

CONCLUSION

[163] We make it clear that we are not dealing, in these proceedings, with the validity of any acts of the interim government. Consistently with the decision of Prasad, that would seem to us to be better dealt with on some subsequent occasion, if necessary. Prasad and the decision of the Privy Council in Madzimbamuto v Lardner-Burke [1968] 3 All FR 561 at 579 recognise that acts done by those actually in control without lawful authority may be recognised as valid or acted upon by the courts, with certain limitations, namely, so far as they are directed to, and are reasonably required for the ordinary orderly running of the state; so far as they do not impair the rights of citizens under the lawful Constitution; and so far as they are not intended to and do not in fact directly help the usurpation.

[164] Further, as counsel for the appellants observed, there were good reasons why in the proceedings below, the court was not asked to rule on the power of the President to legislate by promulgation, namely that it was in not in anyone's interest for the court to declare that all legislation proclaimed since January 2007 was invalid. The declarations made by the High Court (in para [178] (iii) to (v), above) ought not have been made because the issues they deal with were not ultimately before the court, however, until those matters are considered by a court, it must be assumed that the acts of the interim government are lawful and valid.

[165] We do, however, propose to grant a declaration to the effect that the dismissal of Mr Qarase and the other ministers of his government and the dissolution of Parliament was unlawful and in breach of the Fiji Constitution and that the appointments of the Commander as Prime Minister and his ministers were not validly made.

[166] We also propose to declare that it would be lawful for the President to appoint a person a caretaker Prime Minister, for the purpose of advising a dissolution of the Parliament and to give advice to the President that writs for the election of members of the House of Representatives be issued.

CONCLUDING COMMENTS

[167] A number of persons, lawyers and otherwise, in Fiji and elsewhere have voiced the point of view that no one should accept appointment to the courts of Fiji. It is argued variously that accepting appointment involves an implicit bargain with the military government; that appointments should not be accepted because there are questions about their legality, and that accepting appointments lends legitimacy to the military government and makes it less likely that it will stand down or call elections.

[168] The commentators are entitled to their points of view. However another point of view is that so to refuse appointments denies the people of Fiji access to justice and the rule of law (in recommending the preamble to the Constitution, the Reeves Report (para [5.41]) explained that the rule of law ‘is a constitutional concept which today signifies: a preference for law and order in the community as distinct from anarchy and strife; the conduct of the government in accordance with the law; the need for the law to conform to standards of fairness and justice, both in its substantive content and in the procedures for its application in court’) and undermines the Constitution. As the High Court in Australia stated in A-G of the Commonwealth of Australia v R [1957] HCA 12; (1957) 95 CLR 529 at 540-

'the absolute independence of the judiciary is the bulwark of the constitution against encroachment whether by the legislature or by the executive ...'

[169] It is not for this court to delve into this debate except to observe:

(a) Section 118 of the Fiji Constitution provides that judges of the state are independent of the legislature and the executive. In Fiji judges are appointed by the President on the advice of the Judicial Services Commission (the Judicial Services Commission is established by s131 of the Constitution and consists of the Chief Justice, the chairperson of the Public Service Commission and the President of the Fiji Law Society) and not on the advice of any government, military or otherwise.

(b) Some of the commentators have descended into personal attacks, sustained and virulent, against Gates CJ and several other High Court judges. This has not, to the close observation of members of this court, deflected the Chief Justice and other High Court judges from their judicial oaths, their duties and their endless work in bringing Fiji a fair and functioning judicial system. It must be remembered that a fair and functioning legal system can substantially alleviate the situation of a people who aspire to democratic rule in times of instability.

[170] As judges of this court, we can only express the hope that the people of Fiji will again have the freedom of choice of their parliamentary representatives that is enshrined for them in the Fiji Constitution.

DECLARATIONS AND ORDERS

[171] The court hereby:

'(1) Declares that:

(a) the assumption of executive authority and the declaration of a state of emergency by the first respondent;

(b) the dismissal of the first appellant from the office of Prime Minister and the appointment of Dr Jona Baravilala Senilagakali as caretaker Prime Minister;

(c) the advice that Parliament be dissolved by Dr Senilagakali;

(d) the order by the first respondent that the Parliament be dissolved;

(e) the appointment on 5 January 2007 of the first respondent as interim Prime Minister and of other persons as his ministers by President Uluivuda;

(f) the purported Ratification and Validation of the Declaration and Decrees of the Fiji Military Government Decree of 16 January 2007, subsequently renamed as a promulgation of the Interim Government of the Republic of Fiji, by which decree President Uluivuda purported to validate and confirm the dismissal of the first appellant as Prime Minister of Fiji, the appointment of Dr Senilagakali as caretaker Prime Minister and the dissolution of Parliament;

were unlawful acts under the Fiji Constitution.

(2) Declares that in the events that have occurred it would be lawful for the President acting pursuant to s109(2) of the Fiji Constitution, or as a matter of necessity, to appoint a caretaker Prime Minister to advise a dissolution of the Parliament and the issuance of writs for the election of members of the House of Representatives.'