IN THE COURT OF APPEAL, FIJI ISLANDS
ON APPEAL FROM THE HIGH COURT OF FIJI ISLANDS
APPEAL NO. ABU0078/2000S
THE REPUBLIC OF FIJI
2. THE ATTORNEY-GENERAL OF FIJI Appellants
IN THE COURT OF APPEAL, FIJI ISLANDS
APPEAL NO. ABU0078/2000S
REPUBLIC OF FIJI
THE ATTORNEY-GENERAL OF FIJI Second Appellant
The Rt. Hon. Sir Maurice Casey, Presiding Judge
Hearing: Monday 19, Tuesday 20, Wednesday 21 and Thursday 22 February 2001, Suva
Nicholas Blake QC, Anthony Molloy QC, Michael Scott, Savenaca Banuve and
Jai Udit for the Appellants
Geoffrey Robertson QC, George Williams, Anu Patel and Neel Shivam for the Respondent
Date of Judgment:
Thursday 1 March, 2001
This appeal is against the judgment
of Gates J of 15 November 2000 in which he upheld the continuing validity of
Fiji's 1997 Constitution in proceedings brought in the High Court at Lautoka by
the respondent Mr Chandrika Prasad. The proceedings challenged the legality of
actions, including the purported abrogation of the Constitution, taken by those
who assumed control of the State during and after an attempted coup by George
Speight on 19 May, 2000.
a Court of Law, our task is limited to determining legal issues. We have no
jurisdiction or authority to pass judgment on non-legal questions, particularly
those of a political nature.
appeal raised questions as to what had actually happened in Fiji after 19 May
2000 and we have had to decide these questions. We have done this by finding, on
the evidence, what actually happened, without considering the political merits
or wisdom of what occurred. Our task has been to determine whether the 1997
Constitution remains in place as the Supreme law in Fiji. It has been no part of
our task to determine whether it is the best possible Constitution for Fiji.
That was the task undertaken in the lead up to the 1997 Constitution, initially
by the Reeves Commission, then by the Government, the political parties, the
Great Council of Chiefs, and others involved in the political process. The
Courts of Fiji played no part in the creation of the 1997 Constitution.
Similarly our function in deciding whether the Constitution remains in force is
the purely legal one of deciding, as a matter of law, whether its purported
abrogation by Commodore Bainimarama (the Commander) on 29 May 2000 achieved that
result, or has done so since.
Speight and his supporters mounted an armed invasion of the Parliament on 19 May
2000 which resulted in the then Prime Minister, members of his Cabinet and other
members of the People's Coalition
parties being taken hostage. On the same day the resident proclaimed a State of
Emergency and promulgated Emergency Regulations pursuant to the Public Safety
Act (Cap 19). The events that followed, particularly in Suva, evidenced a
progressive breakdown of law and order. The facts themselves are not in dispute.
On 27 May the President, Ratu Sir
Kamisese Mara, appointed the Hon. Ratu Tevita Momoedonu, Minister for Labour
Industrial Relations and Immigration, to perform the functions of the Prime
Minister, with effect from that day, while the Prime Minister was unable to
perform them. On the same day, acting on the advice of the Acting Prime Minister
and under section 59(2) of the Constitution, the President prorogued (that is
adjourned) Parliament for six months. The Acting Prime Minister then resigned
that office, reverting to his former ministerial position. Counsel agreed that
the President did not dismiss the Prime Minister or his Government and did not
assume executive control.
situation continued to deteriorate. On 29 May the Commissioner of Police wrote
to the President to advise "that the Fiji Police Force can no longer
guarantee the security of the nation". He requested the President to invoke
the Public Emergency Regulations and ask the Armed Services to perform all
duties and functions of police officers.
meeting took place that evening, on board a naval vessel, between the President
and the Commander with some of his officers. In his affidavit of 6 November 2000
sworn in other proceedings, but included by consent in material filed in Court
at the start of the hearing, Ratu Sir Kamisese Mara (Ratu Mara) recorded that
the Commander had informed him that in his opinion the 1997 Constitution did not
provide a framework for resolving the crisis and should be abrogated. Ratu Mara
continued, "I indicated that if the Constitution were to be abrogated, I
would then not return to the Office of President." The Commander then
assumed executive authority as "Commander and Head of the Interim Military
Government of Fiji."
Mara did not then resign as President. He refused to accept office as President
under a new Constitution, and was content to go out of office with the
Constitution if it was abrogated. The purported abrogation of the Constitution
later that day, if effective, operated as the dismissal of the President who
held office under it. It followed, as Gates J held, that if the Constitution
remained in force, Ratu Mara was still the President of Fiji.
events, which may be referred to at this point, confirm this conclusion. The
affidavit of Mr Qarase the Interim Prime Minister of 10 January 2001 annexed a
letter from Ratu Mara dated 15 December 2000 which states:
"Dear Prime Minister
This is to confirm that I have retired
and have elected my pension entitlements under the existing laws ... Should you
require further information or clarification please do let me know.
Mr Qarase replied on 20 December:
write to acknowledge receipt of your letter dated 15 December 2000 informing me
of your decision to take reduced pension and gratuity as retired President…
I wish to
inform you. Sir, that in accordance with section 5(2) of the President's Pension
Act, Cabinet, at its special meeting earlier today, has approved the pension
entitlements that you have opted for... This would take effect from 15 December
our Cabinet meeting earlier today, our Office is issuing the attached Press
Release in relation to your decision on this matter..".
The press release stated:
"The Interim Prime Minister, Mr
Laisenia Qarase, announced today that he has received communication from the
Right Hon. Ratu Sir Kamisese Mara confirming his decision to retire as
President. His retirement is effective from 29th May 2000. The Prime
Minister has acknowledged the communication from the retired President."
correspondence makes it clear that Ratu Mara did not resign until 15 December
when he wrote to the Interim Prime Minister.
is now necessary to return to the events of 29 May. Later that day, the
Commander promulgated a decree purporting to abrogate the Constitution (Interim
Military Government Decree No. 1). Decree No. 3 was also promulgated to
establish an Interim Military Government. Clause 5(2) stated that the executive
authority of the Republic of Fiji was vested in the Commander as the head of the
Commander understood that the establishment of the Military Government by Decree
No. 1 involved the imposition of Martial Law on Fiji, but there was no separate
proclamation to this effect. However on Sunday 11 June an advertisement by the
"Martial Law may be defined as a
temporary rule by Military authorities on a civilian population when the Civil
Authority is unable to preserve public safety. The authority to declare and
impose Martial La w may be derived from the constitution, in which case the
constitution will still be in place when Martial Law is declared. In our case
(Fiji) there is no provision in the constitution for the declaration and
imposition of Martial Law, hence the Military Authorities, amongst other reasons
have found it fit to set aside the constitution in its quest to restore public
safety and law and order.
Once Martial Law has been declared, the Military
Authorities have set up a Military Council and are now ruling by decree. Martial
Law gives the Military authorities the powers to restrict the rights of
individuals and other arms of government when pursuing its aim of returning the
country to normalcy at the earliest possible time.
The authorities have decided that no
Military Tribunal shall be set up specifically to try civilians during this
crisis. The police have been allowed to continue their normal law enforcement
duties and investigations, the judiciary has not been tampered with and the
bureaucracy has been allowed to continue with the occasional guidance from the
4 July Decree No. 10, the Interim Civilian Government (Establishment) Decree
2000, was made by the Commander. This established an Interim Civilian Government
with the Commander as Head of Government. By clause 10 the executive authority
of the State was vested in the Head of Government. Ministers in that Government
were sworn in by the Commander the same day.
9 July the Interim Military Government promulgated Decree No. 18, the Immunity
Decree 2000, which purported to grant immunity from criminal prosecution and
civil liability to George Speight and his supporters. On 9 July the Interim
Civilian Government also promulgated Decree No. 19, the Interim Civilian
Government (Transfer of Executive Authority) Decree. This provided for the
appointment of an Interim President and an Interim Vice President. Clause 4
provided that the Government shall have power to make laws for the peace, order
and good government of Fiji by means of decrees promulgated by the President on
the advice of the Cabinet. Clause 5 vested the Executive Authority of the State
in the President who was to act only on the advice of the Cabinet. Clause 6
provided that the Cabinet should consist of a Prime Minister and other Ministers
appointed by the President. The decree was signed by the Commander and took
effect on 13 July. On 14 July the Great Council of Chiefs appointed Ratu Josefa
Iloilo, the Vice-President under the 1997 Constitution, as Interim President and
Ratu Jope Seniloli as Interim Vice President. That day the remaining hostages
Interim President and Vice President were sworn in, presumably by the Commander
on 18 July. On 28 July the Interim Civilian Government Ministers were sworn in
by the Interim President and took office under the Interim Civilian Government
(Transfer of Executive Authority) Decree. The Interim Civilian Government has
remained the de-facto Government of Fiji ever since.
17 August it promulgated the Judicature Decree 2000 (Decree No. 22) which was
deemed to have commenced on 13 July. This provided that the persons holding
appointments on 12 July as Chief Justice, Justice of Appeal, or Judge of the
High Court should continue to hold such appointments, and it
"re-established" the High Court of Fiji and the Court of Appeal.
Clause 8(2) provided that the Chief Justice and the existing Judges of the High
Court were not required to take the oath of allegiance and the judicial oath
prescribed in the Schedule "if the person shall have taken such oaths
within Fiji on a previous occasion". Clause 13(2) contained the same
provision for Justices of the Court of Appeal. The oath of allegiance and the
judicial oath in the Schedule were not the same as those in the Schedule to the
1997 Constitution as they did not include statements that the Judge "will
in all things uphold the Constitution". Clause 15(1) purported to make this
Court the final Court of Appeal for "the Republic of Fiji" and clause
16(1) purported to repeal the Supreme Court Act 1998.
J found, on the evidence before him that on 29 May Ratu Mara had "stepped
aside", that he had not resigned, and he was still the President of Fiji.
The fourth declaration he made (referred to below) was framed on that basis. The
fuller evidence before this Court has confirmed this finding as at 15 November,
when Gates J gave judgment, but as previously stated, Ratu Mara resigned as
President on 15 December.
release of the hostages and the restoration of law and order were achieved as a
result of the Muanikau Accord between the Commander and George Speight. The
Speight group were to release the last of the hostages, evacuate the Parliament
buildings and surrender their weapons, and in return they would receive immunity
from criminal prosecution or civil proceedings. The Military later concluded
that George Speight and some of his supporters had not surrendered all their
weapons and they were arrested. At the present time they are awaiting trial on
treason charges relating to the Government established under the 1997
Constitution, the Interim Military Government, and the Interim Civilian
The High Court Proceedings
4 July Mr Prasad, a citizen of Fiji, who had not held any office or appointment
under the 1997 Constitution, filed an originating summons in the High Court at
Lautoka seeking a Court ruling (declaration) that the 1997 Constitution was
still in force as the supreme law of Fiji. The defendants were described as the
Republic of Fiji and the Attorney-General (hereinafter the Interim Civilian
Government). The summons and supporting affidavit were served on the
Attorney-General's Chambers in Suva on 10 July. The proceedings came before
Gates J at Lautoka on 14July, a timetable was set and 23 August was fixed as the
date for hearing. On 7 August the Interim Civilian Government filed a summons to
strike out the proceedings on the ground that Mr Prasad had no legal right or
standing to raise the issues in a court. On 23 August Gates J permitted Counsel
representing Mr Prasad to amend the originating summons and then heard the
application to strike out the proceedings and the originating summons.
Prasad was represented by overseas counsel who addressed on all issues. Counsel
for the Interim Civilian Government, from the Attorney-General's Chambers,
addressed only on the question of legal standing. At the end of the hearing
Gates J directed Counsel for the Interim Civilian Government to file written
submissions within 14 days, and gave Mr Prasad leave to file written submissions
in reply within a further 3 days. The Judge reserved his decision in both
matters. On 15 November he delivered the judgment under appeal.
J decided that Mr Prasad had standing to bring the proceedings, and while this
decision was challenged in the notice of appeal, the point was abandoned in the
submissions of the Interim Civilian Government. His Lordship held that the
Speight coup had not succeeded (a finding not challenged on appeal) and went on
to consider the legality of the Commander's actions in the light of the doctrine
of necessity, as it applied in Constitutional Law, referring to relevant
decisions discussed later in this judgment. He concluded that while the
Commander had acted in accordance with that doctrine to secure the safety of the
State, he had no genuine desire to remove the 1997 Constitution, and no need to
pass the decree abrogating it. As will be seen, we do not share his view of the
Commander's purpose. Accordingly, the Judge held it was still in force and made
the following declarations:
The attempted coup of May 19th was unsuccessful.
The declaration of the State of Emergency by the President Ratu Sir
Kamisese Mara in the circumstances then facing the nation, though not strictly
proclaimed within the terms of the Constitution, is hereby granted validity ab
initio under the doctrine of necessity.
revocation of the 1997 Constitution was not made within the doctrine of
necessity and such revocation was unconstitutional and of no effect. The 1997
Constitution is the supreme and extant law of Fiji today.
The Parliament of Fiji consisting of the President, the Senate, and the
House of Representatives, is still in being. Its incumbents on and prior to 19
May 2000 still hold office, that is Ratu Kamisese Mara, who had stepped aside,
and who remains President as originally appointed by the Bose Levu Vakaturaga
(Great Council of Chiefs); the Senators are still members of the Senate; the
elected Members of Parliament are still members of the House of Representatives.
The status quo is restored. Parliament should be summoned by the President at
his discretion but as soon as practicable.
Meanwhile, owing to uncertainty over the status of the government, it
will remain for the President to appoint as soon as possible 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 pursuant to sections 47 and 98 of the Constitution, and that
Government shall be the Government of Fiji."
The Appeal Process
17 November the Interim Civilian Government filed a Notice of Appeal to this
Court. On 1 December the hearing of the appeal was fixed for 19 February 2001
and directions were given for its prosecution.
Interim Civilian Government, having staked everything before Gates J on the
strike out application based on Mr Prasad’s lack of standing, had not filed
any affidavits, as directed, on the merits of Mr Prasad's claim that the
Constitution of 1997 remained in force. Thus the Judge was left, at that stage,
with the evidence for Mr Prasad and such notorious facts as were within the
scope of judicial notice. However, subsequent interlocutory proceedings brought
before the Judge affidavits of the Commander and of Mr Alipate Qetaki, the
Attorney-General in the Interim Civilian Government, both sworn on 14 September.
Very properly, Gates J decided to consider those affidavits.
Judge's decision that the Constitution of 1997 remained in force, and this
appeal, raise questions of great public importance for Fiji. It was necessary
that the appeal be heard and determined as soon as possible. The Interim
Civilian Government indicated at an early stage that it would seek leave to file
further evidence. On 17 January Sir Maurice Casey, sitting as a single Judge
under the Court of Appeal Act, gave it leave to adduce such evidence, with leave
to Mr Prasad to adduce further evidence in reply. A case of this importance
could not properly be determined by this Court on inadequate and incomplete
materials, especially when this may have been the result of procedural defaults
caused by misguided tactical decisions taken by counsel for the Interim Civilian
Government. Moreover, although judgment in the High Court had been reserved on
23 August, events continued to unfold directly relevant to the current legal
status of the 1997 Constitution.
parties freely availed themselves of this leave and a great mass of further
evidence was filed. On 19 February, at the start of the hearing, the Interim
Civilian Government obtained leave to file yet further evidence.
Nature of Events of 29 May 2000
first question identified by Mr Blake, who appeared for the Interim Civilian
Government was whether on 29 May the Commander was acting to create a new legal
order when he said he was abrogating the 1997 Constitution. His unchallenged
evidence was that he advised the President at that time that in his opinion the
1997 Constitution did not provide a framework for resolving the crisis and
should be abrogated.
subsequent acts, evidenced by Interim Military Government Decrees Nos. I and 3
already referred to, make it perfectly clear that the Commander was attempting
to abrogate the Constitution. Thereafter until 28 July, the Commander and the
Interim Military Government he headed acted as if the 1997 Constitution had
ceased to be the basic law of Fiji. Decrees made by the Interim Military
Government provided that substantial parts
of the Constitution should remain
in force, and that the holders of Constitutional offices and organs of
Government, including the Courts (other than the Supreme Court), should continue
to function. However, the Decrees provided that this should occur by force of
the Decrees, and not by or under the 1997 Constitution.
28 July the Commander and the Interim Military Government had completed the
transfer of executive authority to the Interim Civilian Government. The Decrees,
and the transfer of power, were made under the new legal order the Commander was
attempting to establish, and not under the 1997 Constitution.
legal effect of his conduct is discussed later in this judgment, but we think it
appropriate at this stage to undertake a study of the 1997 Constitution.
repeated theme in the Interim Civilian Government's affidavits is that there was
a general perception amongst the indigenous Fijian community that the 1997
Constitution did not adequately protect their interests. The Commander suggested
that "the 1997 Constitution was widely regarded as inadequately protecting
indigenous rights, insufficiently protecting Fijian land and endorsing an
electoral system having bizarre and unexpected results". He pointed out
that the exploitation of those perceptions allowed such men as Speight to
inflame their fears. By such exploitation, the "calculated destabilisation
of Fiji society, loss of life, destruction of property and such other
fundamentally repugnant actions of the Speight group" were made possible.
His view was that the violent acts of May 19 and the weeks that followed were
committed largely by "very unsophisticated persons ... and the significance
of entrenched safeguards and the meaning of same may well not have been clear to
them and certainly Speight or persons of similar leaning would be astute not to
cite such safeguards". The result, as the Interim Civilian Government
submitted, was that "the actions of the Speight group had inflamed ethnic
passions and were resulting in widespread disorder, misery, destruction of
property and threats to personal security."
was part of the Interim Civilian Government's case that, following the results
of the May 1999 election, "there was rising concern amongst a substantial
part of the electorate that the Government was ignoring the concerns of the
indigenous Fijians and that the electoral engineering of the 1997 Constitution
was responsible for an unbalanced outcome. There was particular concern about
any interference with indigenous land rights that had been inadequately
protected under the 1997 constitution". Counsel for Mr Prasad have
contended that these concerns were not as widely held amongst the indigenous
population as the Interim Civilian Government would have the Court believe.
1997 Constitution was the result of the report of the Fiji Constitution Review
Commission under the chairmanship of Sir Paul Reeves. The Interim Civilian
Government's evidence suggests that a significant proportion of the indigenous
community appears to have been ignorant of the protection which that
Constitution gave them. It is important, therefore, to consider the position of
indigenous Fijians under the 1997 Constitution and previous Constitutions in
order to see whether the fears referred to by the Commander have any foundation
Fiji achieved independence in 1970, the Constitution given to the people of Fiji
was the result of a lengthy consultation process with the leaders of the various
communities at that time. Notable amongst those leaders was Ratu Mara.
Pre-independence legislation protecting Fijian and Rotuman affairs and native
land remained in force after independence but the 1970 Constitution entrenched
their provisions so they could not be altered without a majority of three
quarters of all the members of each House of Parliament instead of the normal
requirement of a simple majority of those members present and voting. Any
alteration of the constitutional provisions entrenching such Acts also required
similar majorities. The Constitution also included the right of the Great
Council of Chiefs and the Council of Rotuma to nominate senators in addition to
those nominated by the Prime Minister and the Leader of the Opposition. Where
any such amendment affected Fijian or Rotuman 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 and the Council of Rotuma.
1990 Constitution addressed some of the suggested weaknesses or omissions in the
provisions of the previous Constitution by measures specifically designed
further to protect indigenous interests. Chapter II dealt exclusively with the
protection of Fijian and Rotuman interests "by promoting and safeguarding
(their) economic, social, educational, cultural, traditional and other
interests" and required the Cabinet to act on such matters in consultation
with the Great Council of Chief sort he Council of Rotuma. It further
strengthened the position of the Great Council of Chiefs by giving it the right
to appoint the President and to designate the two people entitled to act in that
office when necessary. It reserved the positions of Prime Minister, any acting
Prime Minister and the Chairman of the Police Service Commission to Fijians;
ensured that the President would have to consult with the Great Council of
Chiefs and the Council of Rotuma before nominating 25 of the 34 Senators and
required that they were Fijian or Rotuman; excluded any right to challenge in
the courts decisions of the Native Land Trust Board in relation to custom and
Fijian ownership of land; re-established the largely defunct Fijian courts;
changed the distribution of seats in Parliament to ensure an imbalance in favour
of ethnic Fijians; and, by abolishing the previous national roll of electors,
increased the likelihood of a majority in the House of Representatives being
achieved by one ethnic group.
1990 Constitution provided that there should be a review not later than seven
years from its enactment and in 1995 the Reeves Commission was appointed by the
then President, Ratu Mara. The terms of reference required the Commission to
ensure that the new arrangements would recognise, protect and guarantee the
rights, paramountcy of interests and concerns of the indigenous Fijian and
Rotuman people, guarantee protection and security for the land rights, fishing
rights and resources of indigenous Fijians and Rotumans and recognise the Great
Council of Chiefs. The Commission was also required to provide for affirmative
action for the indigenous Fijian and Rotuman people as a group in order to bring
about some parity between them and non Fijians particularly in the areas of
commerce and business, professional and technical education and take full
cognisance of traditional and customary laws in Fiji.
terms of reference required that these protective provisions be coupled with the
promotion of multi-ethnic and multi-cultural harmony, unity and co-operation.
The Commission was also required to deal with the voting method for
Parliamentary elections and the system of government. Originally it had been
thought that the 1990 Constitution would only need amendment but the wide terms
of reference resulted in a new Constitution which, however, retained the main
protective clauses of previous Constitutions.
Reeves Commission received numerous written submissions, had consultations here
and abroad and held meetings throughout Fiji to hear the views of as wide a
range of people and organisations as possible. The evidence shows that the
response was impressive. There are references to packed meetings, numerous
submissions and the picture is of a general air of co-operation and expectation.
The Commission heard 236 individual submissions and 633 from groups and
organisations. It considered 163 written submissions and 38 research papers. It
also conducted 25 consultations here and 79 overseas.
Commission report and the Constitution that resulted from it received almost
universal acclaim. It was passed unanimously in both Houses and was endorsed by
the Great Council of Chiefs. The general consensus was referred to by the, then.
Prime Minister, Sitiveni Rabuka, when moving the second reading of the Bill in
the House: He stated the Constitution was "an expression of confidence and
hope in our collective future".
urging the support of all members of the House of Representatives for a
"truly home grown" Constitution which reflected "the dreams and
wishes of every section of society", he said:
"Let us not forget that what
will give legitimacy to our Constitution is the principle that it has been
developed with the free and full participation of everyone, including all of us
here as elected representatives of the people and that it provides for a system
of Parliamentary Government based on the consent of the people ...Rather than
just focussing on removing those aspects of the 1990 Constitution that have
created and exacerbated divisions, misgivings and mistrust among our different
ethnic communities, we have all agreed to develop it into a positive instrument
(Hansard, 23 June 1997, 4483)
was the Constitution which Speight and his supporters sought to destroy in May
last year because they suggested it did not adequately protect or take account
of the rights of the Fijian people under the Coalition Government.
Interim Civilian Government suggests two main causes for the perceived concern
of the indigenous Fijian community. First, that the 1997 Constitution was
responsible for the unbalanced outcome in the election and, second, that it
weakened the protections under previous constitutions so that the new government
under an Indo-Fijian Prime Minister could disregard and erode the rights of
his affidavit, the Prime Minister of the Interim Civilian Government identified
"the perceived cause of the events of May 19th as "the perception,
widely held among indigenous Fijians, that the 1997 Constitution had weakened
positive discrimination provisions, and other basic Fijian legal rights, and
that taken with the Electoral Act it had saddled the Republic with an
incomprehensible and unfair electoral system. The widespread perception of those
defects in the 1997 Constitution and the role of that perception in the events
of May 19th made inevitable the abrogation of the Constitution...”
Interim Civilian Government's case on the first of the suggested causes is that
the result arose from a failure by many of the Fijian voters to understand the
complications of the alternative voting system. They adopted the view of
Jonathan Fraenkel, a lecturer in Economic History at the University of the South
Pacific that, "in practice the system proved extraordinarily complex, the
results remarkably ambiguous and its merits as a tool for promoting ethnic
cooperation were highly questionable". Whilst we accept that such views may
have been commonly held, the evidence before us clearly demonstrates that they
were erroneous. In an earlier article published in the Australian Journal of
Politics and History, Vol. 46 (No 1) March 2000, Fraenkel analysed the voting
figures and appears to have reached a different conclusion. Mr Blake did not
dispute his analysis.
to 1997, elections had all been conducted under the "first past the
post" system. Under the new Constitution, the electoral provisions were
based on the Australian preferential system of voting known as the alternative
vote and, for the first time, voting was compulsory. In addition there had been
a change in the arrangement and distribution of seats to provide for 46 communal
seats and 25 open seats. 24 of the communal seats were for Fijian and Rotuman
voters, 19 for Indians and 3 for the remaining groups. There were specific
provisions for the Prime Minister to invite members of other parties to join the
Cabinet after the election.
an extensive programme to explain the new voting system, the first elections
under the new provisions were held in May 1999 and resulted in the People's
Coalition led by Mahendra Chaudhry being returned with a total of 51 of the 71
seats-a majority increased by 3 when the Christian Democrats or Veitokani ni
Lewenivanua Vakaristo (VLV) also joined the coalition. Within the coalition, the
largest party was Mr Chaudhry's multi-ethnic Fiji Labour Party (FLP).
figures supplied to the Court show that if only the first choice votes are taken
and treated as if the election had been held under the "first past the
post" system, the result would have given a higher number of seats to the
Soqosoqo ni Vakavulewa ni Taukei (SVT) (from 8 to 17) and reduced the seats of
the FLP (from 37 to 34) but the People's Coalition would still have won 45
seats, giving it a comfortable majority which would have been increased by 2
more VLV seats. Even if the votes had been cast under a system of proportional
representation the votes would have given a clear majority for a coalition which
included the VLV. Whichever system had been used, the voting figures would have
made the FLP the largest individual party by a substantial margin.
Interim Civilian Government claimed there had been a large percentage of invalid
votes in the election which had principally affected the indigenous Fijian vote.
This is not borne out by the figures. The voting in the communal seats taken on
a percentage basis, shows the highest number of invalid votes were cast by the
Rotumans (14.69%) followed by the Indians (9.22%), Fijians (8.72%) and the
General Electors (8.16%). In the open seats the invalid votes were in the same
range at 8.36%. Clearly any effect from invalid votes was felt across all racial
General Rabuka, in his speech quoted above, pointed out that the Alliance
Government was defeated in 1977 not because the 1970 Constitution was inherently
bad but because the Fijians were split. The number of Fijian parties in the 1999
election undoubtedly had an effect on the final result. Analysis of the results
of that election shows most alternative votes were cast on ethnic lines but the
majority of Fijians preferred to give that vote to the Fijian parties committed
to the Peoples Coalition rather than to the SVT. There is little evidence to
support the contention that the voters were confused by the system.
second concern that the new Government was trying to erode the rights of the
indigenous Fijians to their land is easily understood and equally easily
exploited. The problems over the Agricultural Landlord and Tenant Act (ALTA),
including expiring leases, had to be faced. Previous governments had failed to
address them adequately or at all and time was running out. Whichever government
had been elected, it could no longer ignore the problem and difficult policy
decisions and legislative steps were urgently required. These are important and
sensitive issues and, as the Commander pointed out, people like Speight, bent on
the destruction of the legal order, relied on a lack of understanding amongst
their followers of the extent and effect of the substantial safeguards
entrenched in the 1997 Constitution.
185 provides that any attempt to alter certain Acts relating to indigenous
rights must be passed three times in each House and, whatever the vote, is
deemed not to have been passed in the third reading in the Senate unless it is
supported by the votes of at least 9 of the 14 Senators appointed on the
recommendation of the Great Council of Chiefs. The Acts so entrenched are the
Fijian Affairs Act, Fijian Development Fund Act, Native Lands Act, Native Land
Trust Act, Rotuma Act, Rotuman Lands Act, Banaban Lands Act and Banaban
Settlement Act. In addition to those safeguards, any amendment of the
Agricultural Landlord and Tenant Act requires a two-thirds majority of all
members of each House at its third reading. Any alteration of the Constitution
requires special majorities and, by section 192, any alteration to the number of
communal seats requires the support of a substantial majority of the members of
the ethnic group affected. Section 192 (4) requires any attempt to remove or
change the protective provisions of section 185, or of section 192 (4) itself,
to have the additional support of two thirds of the Senators recommended by the
Great Council of Chiefs.
is required to make provision for granting an equitable share of royalties to
owners of land or customary fishing rights arising from extraction of minerals
from the land or seabed. Although laws may not generally be made which favour
one group over others, Parliament is also required to provide for the
application of customary laws and for dispute resolution in accordance with
traditional Fijian practices and must have regard for the customs, traditions,
usages, values and aspirations of the Fijian and Rotuman peoples. In addition,
the involvement of the Great Council of Chiefs in a number of constitutional
functions is an added safeguard against any action that may prejudice the rights
of the indigenous population.
have referred to these provisions to demonstrate that any perceived attempt by
the Government to change the law in relation to land or to indigenous rights by
stealth was impossible under the 1997 Constitution and any suggestion that it
needed to be replaced on that ground cannot be substantiated.
Jurisdiction of Court
of the members of the Court was appointed under or has had his appointment
renewed under either the 1990 or 1997 Constitutions. Each of us has taken the
oaths of office prescribed by one or other of those Constitutions. None of us
has taken an oath of office under the Judicature Decree 2000 of the Interim
Civilian Government. That Decree stated that nothing should affect our
continuance in office as Judges of the Court of Appeal and it did not require us
to take new oaths. The Interim Civilian Government has raised no difficulties
about our travelling to Fiji to hear this case: it has provided administrative
and security services. What, then, is our position as Judges asked by the
Interim Civilian Government to decide on this appeal whether the 1997
Constitution has been successfully abrogated? Has this Court the jurisdiction to
decide whether a new regime, set up in defiance of the 1997 Constitution, has
become legal and thus entitled to rule the country?
there has been a plethora of academic discussion on the topic, we have no
hesitation in holding that the answer to these questions is in the affirmative.
We base our view on the clear indication given by Lord Reid in Madzimbamuto v
Lardner-Burke,  1 AC 645 to the effect that Courts, including those
created by a written constitution, are authorised and required to decide when
and if a revolutionary regime has become lawful. Lord Reid said at 723:
to the question whether the usurping government can now be regarded as a lawful
government much was said about de facto and de jure governments. Those are
conceptions of international law and in their Lordships' view they are quite
inappropriate in dealing with the legal position of a usurper within the
territory of which he has acquired control. ..... But the position is quite
different where a court sitting in a particular territory has to determine the
status of a new regime which has usurped power and acquired control of that
territory. It must decide. And it is not possible to decide that there are two
lawful governments at the same time while each is seeking to prevail over the
resist the temptation to discuss the theoretical basis for exercising this
supra- constitutional jurisdiction. It is sufficient to observe that such a
jurisdiction has been exercised by Judges in other cases. We consider that not
only is it appropriate for us to consider the seminal issues raised by this
appeal, but that it is our duty as Judges of Fiji to do so.
exercise of jurisdiction is rendered all the more sensible because the Interim
Civilian Government, by appealing, has effectively invited this Court to decide
whether the 1997 Constitution survives. By preserving the role and status of the
Court, it has acknowledged that the Court has survived any attempted revolution
which may have affected the legislative and executive branches of government.
a situation where there has been a purported overthrow of a Constitution but
where the Court system has survived virtually unscathed, the Court has two
options, as the cases show. First, it can say that the usurping government, by
abrogating the Constitution or by changing it in an illegitimate manner, has
succeeded in changing permanently the previous legal order and that the new
order is legally valid. There is always the danger that such a finding is seen
as giving the stamp of legitimacy to a usurper. As against that perception, a
Court cannot be blind to reality, however unfair or unfortunate that reality may
other option for the Court is to declare the usurpation invalid. Under this
option, a revolutionary change to the legal order will be declared to have been
ultimately unsuccessful. This result can occur even if the usurper had been
acting under the doctrine of necessity -i.e. as a result of events which were so
drastic as to call for the suspension of the Constitution and/or the imposition
of martial law. Under this scenario, when the crisis is over, the Constitution
when the doctrine of necessity does not apply, but there was a purported change
in the legal order and an illegitimate overthrow of the Constitution, the new
order may not ultimately be recognised as the legal government unless the
usurper proves various matters which we shall discuss later, including, notably,
acceptance of the new regime by the general populace.
Doctrine of Necessity
consequences for a country's legal system of an abrogation of a constitution
and/or the usurpation of the constitution by self-proclaimed rulers, have
received considerable attention in various parts of the Commonwealth where such
events have occurred. Frequently, abrogation of a constitution has been the
result of a coup accompanied by bloodshed and immense upheaval.
of the decisions cited were decided long after a change in the legal order had
taken effect and at a time when the new order had become accepted by the people,
perhaps reluctantly in some instances. This case is different because it is the
only one where the purported rulers of a country seek through the court process
an endorsement that they are in fact the legal (although not necessarily
legitimate) government of the country.
Counsel for Mr Prasad submitted
strongly that legal effect cannot be given to the Interim Civilian Government's
actions under the principle of necessity where such actions would abrogate or
change the 1997 Constitution. It is clear that the procedures under the 1997
Constitution for its amendment in Chapter 15 were never followed.
good description of the necessity principle is found in Professor F.M.
Brookfield's 'Waitangi & Indigenous Rights Revolution. Law and
Legitimation' (1999 Auckland University Press at p20:
"The courts, then, are under a
duty to uphold the legal order of which they are part. But in doing so they may
sometimes recognize as valid emergency action taken by the executive government
or its armed forces which would be unlawful in normal circumstances but which is
justified in times of extreme crisis by the principle of necessity. .....
The court’s duty to uphold the legal
order is qualified by other manifestations of the necessity principle, one of
which, as recognized by the courts in some modern cases under written
constitutions, has allowed temporary and strictly limited deviations from the
constitution for the express purpose of safeguarding it or for preserving the
rule of law."
formulation of the necessity doctrine is that of Haynes, P. in Mitchell v
Director of Public Prosecutions  LRC (Const) 35, 88 in the Court of
Appeal of Grenada.
"I would lay down the requisite conditions to be
(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
(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;
it must not be one the sole effect and
intention of which is to consolidate or strengthen the revolution as such.
It is for this court to pronounce on the validity (if
so) of any unconstitutional action on the basis of necessity, after determining
as questions of fact, whether or not the above conditions exist. But it is for
the party requiring the Court to do so to ensure that proof of this is on the
Such validation will not be a once-f
or-all validation, so to speak, it will be a temporary one, being effective only
during the existence of the necessity. If and when this ends, the right
constitutional steps must be taken forthwith, that is, within a reasonable
187 of the 1997 Constitution did provide for the President to proclaim a state
of emergency 'acting on the advice of Cabinet'. Clearly, the President could not
act under this section if almost all the members of the Cabinet were held
hostages by the kidnappers. The imperative necessity for prompt action arose out
of exceptional circumstances not provided for in the Constitution. These
circumstances called for immediate action. There was no other course reasonably
available to the President at the time the hostage crisis began. Later on, as
the hostages continued to be confined and anarchy was developing, the Commander
quite properly contemplated executive action by way of martial law to restore
and/or maintain law and order. This was appropriate, so long as the
extraordinary and frightening situation lasted. The crisis did not end until all
the hostages had been released and some calm restored.
the doctrine of necessity, Gates J in the Court below said:
"It is obvious therefore that the
doctrine of necessity could come to aid Commodore Bainimarama in resolving the
hostage crisis, imposing curfews' maintaining road blocks and ensuring law and
order on the streets. Once the hostage crisis was resolved and all other law and
order matters contained, if not entirely eradicated, the Constitution,
previously temporarily on ice or suspended, would re-emerge as the supreme law
demanding his support and that of the military to uphold it against any other
usurpers. The doctrine could not be used to give sustenance to a new
extra-constitutional regime. Nor could it provide a valid basis for abrogating
the Constitution and replacing it with a Constitutional Review Committee and an
interim civilian government. Necessity did not demand any of that."
doctrine of necessity enables those in de facto control, such as the military,
to respond to and deal with a sudden and stark crisis in circumstances which had
not been provided for in the written Constitution or where the emergency powers
machinery in that Constitution was inadequate for the occasion. The
extra-constitutional action authorised by that doctrine is essentially of a
temporary character and it ceases to apply once the crisis has passed.
J held that the Commander had acted to preserve law and order to save the State
from further destruction, to ensure the safe release of the hostages in
Parliament and to restore normality, because the whole nation was on the brink
of total chaos. He concluded therefore that the Commander had no genuine desire
to remove the 1997 Constitution and there was thus no need to pass any Decrees
purporting to abrogate the 1997 Constitution. This Court has had the benefit of
a considerable body of evidence which was not before Gates J and it has also had
the benefit of much fuller legal argument, particularly from the Interim
the basis of the further materials before this Court (including the Commander's
affidavits) we have no hesitation in holding that Gates J was in error when he
found that the Commander had "no .... genuine desire to remove the 1997
Constitution". We are satisfied in the light of the further material placed
before us that the Commander, for the reasons he conveyed to the President at
the time, did have a genuine desire to do just that. The doctrine of necessity
would have authorised him to have taken all necessary steps, whether authorised
by the text of the 1997 Constitution or not, to have restored law and order, to
have secured the release of the hostages, and then, when the emergency had
abated, to have reverted to the Constitution. Had the Commander chosen this
path, his actions could have been validated by the doctrine of necessity.
Instead, he chose a different path, that of constitutional abrogation. The
doctrine of necessity does not authorise permanent changes to a written
constitution, let alone its complete abrogation.
There A New Legal Order?
consider that there was a purported overthrow of the Constitution and it-
replacement by the establishment, first, of military rule and, secondly, of the
Interim Civilian Government. Whether what happened can be characterised as a
'revolution' or not is probably a matter of choice of words. We are attracted to
the definition of 'revolution' in Brookfield (op. cit.) at 13:
"For the purposes of a
constitutional theorist (though one with practical concerns as well), a
revolution may be widely defined as the overthrow and replacement of any kind of
legal order, or other constitutional change to it - whether or not brought about
by violence (internally or externally directed) - which takes place contrary to
any limitation or rule of change belonging to that legal order."
all revolutions are successful. We find that this one was not, for the reasons
to be discussed later. Nor are all revolutions on the grand scale of the French
Revolution or the Bolshevik Revolution in Russia. Nor are all revolutions
"glorious", in the sense of ending the reign of a tyrant or replacing
a repressive regime. Nor do all revolutions involve bloodshed.
this case, there was a purported change in the legal order when the Commander
decided to abrogate rather than suspend the Constitution on 29 May; he
reinforced this change when, he later chose to install the Interim Civilian
Government which has purported to govern ever since. The Interim Civilian
Government has clearly shown that it wishes to implement a new or significantly
altered constitution by setting up a body to seek submissions on constitutional
we cannot uphold the first submission on behalf of Mr Prasad to the effect that
there was no need to look beyond the invalidity of the Commander's purported
abrogation of the Constitution based on necessity. We must now go on to consider
whether this attempted change in the legal order was successful.
formulations are given in the cases of what must be proved to validate a new
legal order in place of the previous one. None of the authorities is binding on
this Court. Some seem over-influenced by the writings of the Austrian jurist
Hans Kelsen, whose theories on one view, might too readily reward a usurper.
(See Das, 'Governments and Crisis Powers'. (Cornell International Law
journal, Winter 1994). Many of the authorities were decided before the modem
shift towards insistence on basic human rights in a raft of international
treaties and, more importantly for present purposes, the 1997 Fiji Constitution.
starting-point for any consideration of authority on this point is the Privy
Council decision in Madzimbamuto v Lardner-Burke (supra) which held as
illegal the regime of Ian Smith in Southern Rhodesia set up under the
'Unilateral Declaration of Independence'. The majority decision of the Southern
Rhodesian Appellate Court was reversed. Although its decision was given almost 3
years after Smith's usurpation of legal power and he was to remain in power for
some 9 further years, the Privy Council considered that various formulations
about the effect of an abrupt political change referred to in cases cited to it
from Pakistan and Uganda did not apply. The British Government, acting for the
lawful sovereign, was taking steps to regain control and "it is impossible
to predict with certainty whether or not it will succeed" (ibid 724 per
Lord Reid said at pp. 723-4:
an historical fact that in many countries - and indeed in many countries which
are or have been under British Sovereignty - there are now regimes which are
universally recognised as lawful but which derive their origins from revolutions
or coups d'état. The law must take account of that fact. So there may be a
question how or at what stage the new regime became lawful.
example occurs in Uganda v. Commissioner of Prisons. Ex parte Matovu  E.A.
514. On February 22, 1966, the Prime Minister of Uganda issued a statement
declaring that in the interests of national stability and public security and
tranquillity he had taken over all powers of the Government of Uganda. He was
completely successful, and the High Court had to consider the legal effect. In
an elaborate judgment Sir Udo Udoma C.J. said:
". . . our deliberate and considered view is that
the 1966 Constitution is a legally valid constitution and the supreme law of
Uganda; and that the 1962 Constitution having been abolished as a result of a
victorious revolution in law does no longer exist nor does it now form part of
the Laws of Uganda, it having been deprived of its de facto and de jure
validity." (at 539)
Pakistan affords another recent
example. In The State v. Dosso  2 PSCR 180 the President had issued a
proclamation annulling the existing Constitution. This was held to amount to a
revolution. Muhammed Munir C.I. said at 184;
"It sometimes happens, however, that a Constitution and the national
legal order under it is disrupted by an abrupt political change not within the
contemplation of the Constitution. Any such change is called a revolution, and
its legal effect is not only the destruction of the existing Constitution but
also the validity of the national legal order."
would not accept all the reasoning in these judgments but they see no reason to
disagree with the results. The Chief justice of Uganda (Sir Udo Udoma C.f.) said
at 533: "The Government of Uganda is well established and has no rival.
" The court accepted the new Constitution and regarded itself as sitting
under it. The Chief Justice of Pakistan (Sir Muhammed Munir C.f.) said at 185:
"Thus the essential condition to determine whether a Constitution has been
annulled is the efficacy of the change." It would be very different if
there had been still two rivals contending for power. If the legitimate
Government had been driven out but was trying to regain control it would be
impossible to hold that the usurper who is in control is the lawful ruler,
because that would mean that by striving to assert its lawful right the ousted
legitimate Government was opposing the lawful ruler.
Lordships' judgment that is the present position in Southern Rhodesia. The
British Government acting for the lawful Sovereign is taking steps to regain
control and it is impossible to predict with certainty whether or not it will
succeed. Both the judges in the General Division and the majority in the
Appellate Division rightly still regard the "revolution" as illegal
and consider themselves sitting as courts of the lawful Sovereign and not under
the revolutionary Constitution of 1965. Their Lordships are therefore of opinion
that the usurping Government now in control of Southern Rhodesia cannot be
regarded as a lawful government. "
now refer to some additional authorities:
In Vallabhaji v Controller of Taxes (11 August 1981, unreported,
Court of Appeal of the Seychelles) a taxpayer claimed that he should not have
been assessed for tax under decrees made by what he claimed had been an illegal
regime. There had been a bloodless coup in the Seychelles in 1977 which had
abrogated the Constitution. A year later, the usurping regime had issued decrees
levying the tax of which the appellant complained. The Court held that the
decrees were valid and enforceable: the extra-constitutional regime had acquired
validity through the consent of or acceptance by the people. 'Acceptance,
consent or its equivalent remains a touchstone' said the President of the Court,
Sir Michael Hogan. Two quotations from this case will suffice.
(a) Mustafa, JA at p20:
of the opinion that a coup Government which continues in office and existence
must be viewed as a whole, and if it has become legitimate and valid, then such
legitimacy relates back to its inception, that is, it becomes legitimate and
valid ab initio. Similarly, if it does not acquire validity or legitimacy, it
remains invalid and illegitimate, subject to savings for necessity. I do not
think such a Government can be divided into legitimate and illegitimate
portions, the dividing line in this instance being, according to Mr. Heald, the
time when it established a constitution based on public consultation. I think
that one has to accept a successful revolution as valid from its inception if it
has remained in office for a sufficient period of time and has the consent and
backing of the people, express or implied. On this basis, the coup Government
has acquired legitimacy and validity and the decrees it enacted in 1977 and 1978
are valid and enforceable.
Hogan P at p14:
We have the advantage of not having
to decide this case in mediis rebus [in the middle of the events] after
an interval of some four years, during which the new revolutionary regime has
enjoyed unchallenged authority and maintained stable and effective government in
the Seychelles' with little or no interruption in the ordinary life of its
citizens. But, even if I did not have the benefit of this hindsight I believe I
would have come to the conclusion, from the smoothness and efficacy of the
revolutionary transition that the new regime had, by the 28th June
1977, received such widespread and unqualified acceptance and consent that it
was, already, a legal authority at that time. Even if I were wrong in this
assessment, because, for example there had been insufficient time for the habit
of obedience to become manifest, when a regime is firmly established and
accepted as legitimate this legitimation is extended back to cover legislation
enacted by the regime from the inception of its context.
another point, Hogan P said that fair elections probably provide the most
convincing proof of acceptance of a regime but that obedience, when manifested,
has also been recognised as a form of ratification. Then later:
"In any event whether the term
chosen is success or submission, consent or acceptance, efficacy or obedience,
there appears to be a consensus or at least a strong preponderance of opinion
that once the new regime is firmly or irrevocably in control it becomes a
lawful or legitimate government and entitled to the authority that goes with
Mitchell v Director of Public Prosecutions (supra), a decision of the
Court of Appeal of Grenada.
1979, Maurice Bishop led a coup which overthrew the government established under
the Constitution. He suspended the Constitution and took executive and
legislative power, although the Queen remained Head of State and the
Governor-General remained in office. On 19 October 1983, Bishop and some of his
Ministers were killed. The head of the (military assumed power. Six days later,
armed forces of the United States and some Caribbean states invaded Grenada and
arrested the military leaders. On 31 October 1983, the Governor-General issued
proclamations assuming executive power and declaring a state of emergency. About
a year later, he brought back the 1973 Constitution. New elections followed and
the legislature enacted a law which confirmed the validity of laws passed
between March 1979 and November 1984 i.e. the time during which the Constitution
had been suspended.
leaders of the military coup were charged with murder but claimed that the High
Court had no jurisdiction to try them since the Court had been created by the
Bishop regime in a manner contrary to the 1973 Constitution. Further, that the
Act validating the legislation of the Bishop regime was invalid because it
effected a change to the Constitution by ordinary legislation and not by the
means mandated by the Constitution.
the High Court, the Chief Justice found that the Court was valid and had
jurisdiction, though admittedly extra-constitutional. This ruling was on the
basis of the doctrine of necessity. On appeal, Haynes, P and Peterkin JA held
that the High Court was 'temporarily valid' on the grounds of necessity until
the current government took steps to reinstate the Court contemplated by the
1973 Constitution. Liverpool JA concurred on the necessity point but held that
the Bishop regime had become the legitimate and lawful government'.
P formulated the 'efficacy' test in these words at p71-2:
"..... I would hold that for a revolutionary
government to achieve de jure status, that is, to become internally a
legal and legitimate government, the following conditions should exist:
a) the revolution was successful, in
that the Government was firmly established administratively, there being no
other rival one; (b) its rule was effective, in that the people by and large
were behaving in conformity with and obeying its mandates; (c) such conformity
and obedience was due to popular acceptance and support and was not mere tacit
submission to coercion or fear of force; and (d) it must not appear that the
regime was oppressive and undemocratic.
In my view unless
all four of these conditions exist no Court in a democratic country should
pronounce a revolutionary regime legitimate. Every one of them (a), (b), (c) and
(d) raises a question of fact. .....
I do not think these are unduly stringent conditions, (a) and (b) can
exist without popular acceptance and support, because of submission to force or
fear of it or weakness. This Court should not take an approach which might
encourage power-seeking politicians or over-ambitious army officers to believe
that; if by force of arms they can gain and retain governmental powers for a few
years, their government will become consequentially lawful and legitimate. We
must bear in mind the warning of Fieldsend, A.J.A, in Madzimbamuto v
Lardner-Burke that "nothing can encourage instability more than for any
revolutionary movement to know that if it succeeds in snatching power it will be
entitled ipso facto to the complete support of the pre-existing judiciary in
their judicial capacity. It may be a vain hope that the judgment of a court will
deter a usurper, or have the effect of restoring legality, but for a court to be
deterred by fear of failure is merely to acquiesce in illegality. " Hence
the importance of conditions (c) and (d).
A revolutionary regime should not be
accorded legitimacy by this Court unless it is satisfied that, on the whole, the
regime had the people behind it and with it. Legality should be achieved only if
and when the people accept and approve for in them lies political sovereignty,
and the Court so finds. This approval they may give ab initio or subsequently.
Length of time might or might not be sufficient to infer it. It might be
expressed or tacit approval. But it is that which should give legitimacy to a
successful and effective revolutionary regime. The support of a real majority is
sufficient. This could be shown by its majority vote at a general election or a
referendum or a majority percentage at polls."
at 73, he said:
"I do not think this Court can
properly act on a bare statement of fact or opinion of popular support, however
credible and knowledgeable the source is and whatever is the basis of it. Proof
of the fact by judicial notice may be admissible. But the weight to be given to
it is another matter. I would hold that what is needed here is proof of
particular facts or circumstances from which the court itself can infer popular
support. In my view the proof here was insufficient."
Mokotso v H M King Moshoeshoe II.  LRC (Const.) 24, a 168-page
judgment of Cullinan, CJ in the High Court of Lesotho.
became independent in 1966 as a constitutional monarchy with a Westminster-style
constitution. When the Prime Minister was defeated at the first general
elections in 1970, he seized control, suspended the Constitution and assumed
dictatorial powers. For the next 16 years, this extra-constitutional regime
remained in power and was notorious for abuses of freedoms. In 1986, the
military forces staged a coup as a result of which the King acting on the advice
of the Military Council assumed legislative and executive authority. The Courts
were to retain their jurisdiction.
Court took 'judicial notice' of the 'notorious fact' that the 1970 coup had been
successful. Such a finding seems hardly surprising given that this regime,
however unlovely, had remained in place for 16 years. The Court then held that
the government established by the 1986 coup was firmly established and
functioning effectively. It relied on the affidavit of the Attorney-General that
the Government had effective control. The Judge took 'judicial notice' of
several matters i.e. a 'formidable body of legislation'; that the judiciary was
functioning effectively; that the vast majority of the people were behaving in
conformity with the Government's administration; and that peace and stability
'now reign'. The Judge then held that the 1986 revolution had been popular,
noting the factors above and the jubilation in the streets which greeted news of
the coup. He said at pi 65 of the judgment, that the applicant did not "...
adduce a scintilla of evidence to suggest that there was a general air of
Cullinan CJ considered that the burden of proof of legally rests upon the new
regime. We quote his comments at pp. 132-3 of the judgment which end with his
formulation of the test for efficacy.
"... the burden of proof of
legitimacy must always rest upon the new regime. No presumption of regularity
can operate in the regime's favour: indeed there must be a presumption of
irregularity, if I may put it that way. If then a revolutionary regime is
unpopular or oppressive, it is likely that it will meet with initial resistance,
perhaps even physical resistance, and the people will not conform. During any
such period of resistance, of course, neither of the first two conditions
formulated by Haynes P will then be satisfied. Ultimately, however, the
situation must resolve itself, one way or the other. If the people ultimately
acquiesce, then the new regime is entitled to recognition by the courts.
situation is comparable even where there has been no initial rejection, but none
the less the people's acquiescence in the matter is not a willing one. In the
situations depicted, it would seem to be that the burden of proof of legitimacy
must be all the greater. This perhaps is another way of saying that a longer
period would be required for the habit of obedience to become manifest. None the
less such considerations cannot affect the principle that once the court is
satisfied as to the establishment of such habit then it must grant recognition
to the new Government. I would accordingly express the test to be applied as
A court may hold a
revolutionary government to be lawful, and its legislation to have been
legitimated ab initio, where it is satisfied that (a) the government is firmly
established, there being no other government in opposition thereto; and (b) the
government administration is effective, in that the majority of the people are
behaving, by and large, in conformity therewith."
facts of Mokotso differ from the present case in many respects,
In Mokotso, there was no evidence of discontent with the new
regime: rather the evidence pointed to wide public acceptance. Here, as we shall
summarise later, there is evidence of general discontent with the present regime
and with the purported abrogation of the 1997 constitution.
International approval attended the overthrow of the 16-year rule of
Chief Jonathan by the 1986 coup. On the evidence the same cannot be said of the
reaction of the international community to the purported overthrow of the 1997
Constitution. Rather the opposite.
is valuable but we consider that the Chief Justice's formulation of the efficacy
test is too narrowly expressed. Haynes P's 'extra conditions' in Mitchell cited
earlier have been criticised as unable to be 'reconciled with the facts of
history'- see Ackermann J.A. in Makenete v Lekhanya  3 LRC 13, 63.
It may be that Haynes P went too far in his condition (d) (i.e. it must not
appear that the regime was oppressive and undemocratic) because, as Brookfield
opined (op. cit at 28), the condition goes to the legitimacy of a regime and not
its legality. The distinction does not always appear to have been fully
understood in some of the authorities cited to us.
Makenete v Lekhanya  3 LRC 13 was a decision of the Lesotho
Court of Appeal after the regime recognised as legal in Mokotso
(supra) had itself been overthrown by the defence forces in 1990. The regime,
whose birth was said in Mokotso to have been attended by great public
rejoicing, had thus lasted a bare 4 years. The Court of Appeal of Lesotho upheld
Cullinan CJ at first instance, finding that there had been another new legal
order established by the 1990 regime which had satisfied the various tests of
following comments of Ackermann, JA at pp. 56-7 are of some guidance,
particularly when the Court has to consider the length of time since a change
took place in coming to a decision on a new regime's efficacy.
"As pointed out by Lord Reid in Madzimbamuto there
are situations where '(t) he law must take account of (the) fact that there are
now regimes which are universally recognised as lawful but which derive their
origins from revolutions or coups d'état’ The question is 'how or at what
stage the new regime became lawful'. At the one end of the scale therefore there
is the case of a regime, born out of a revolution or coup d'état, which has
been entrenched for so long and has been accepted voluntarily as legitimate for
so long by the people, that the court 'must take account of that fact'. Here, it
seems to me, the facts have indeed become normatively prescriptive. At the other
end of the scale there is the case of a regime whose usurpation of power and
acquisition of control of the territory in question is so tenuous that it cannot
be said that the revolution is successful or the administration's control firmly
established or its rule effective where a court is bound to decide (as did
Fieldsend AJA and the Privy Council in the Madzimbamuto case) that the usurper
is not the lawful government. Here, too, the facts are normatively prescriptive.
The problem, as Lord Reid pointed out, is that 'there may be a question how or
at what stage the new regime became lawful'. This would relate to the middle
ground between the two poles, where the task of adjudication becomes complex and
difficult and where the totality of the circumstances must be anxiously
scrutinised and where isolated facts must not be allowed to become
have been cases where Courts have upheld the success of a usurpation on the
grounds of control by the new regime and acceptance of control by the populace
despite the regime having some unattractive characteristics. Where Courts have
held coups invalid, the new regime has often responded by a drastic curtailment
of the power, independence and jurisdiction of the Courts. The resignation of
Judges on conscience grounds in these situation' opens the way for the usurpers
to pack the Courts with sympathetic Judges. To its credit, the Interim Civilian
Government in this case has adopted a very responsible stance, as stated by Mr
Blake at the end of the hearing. He said that in the event of the 1997
Constitution being upheld by the Courts, it would use its best endeavours to
promote a return to constitutional legality.
Robertson urged us to add to our formulation of the efficacy test an additional
criterion to those of Haynes P, namely, whether the new regime acknowledges
basic human rights as evidenced by international obligations assumed by the
nation. We do not think it necessary to include a requirement that a usurping
regime has to show adherence to International human rights treaties. The 1997
Constitution was made in Fiji for Fiji by the Parliament and people of Fiji. It
contains many of the rights and freedoms mandated by international instruments.
It protects the rights of the indigenous people and entrenches some of those
rights as we have detailed earlier. The extensive consultation undertaken by the
Reeves Commission that preceded its adoption in Parliament provides strong
evidence that the 1997 Constitution reflected the will of the great majority of
the people of Fiji. It is permissible when assessing the test for efficacy in
this context to take into account the evidence which suggests contentment with
or acceptance of the 1997 Constitution by the population at large. Such
acceptance militates against the proposition that there has been general
acquiescence in its abrogation.
formulating our understanding of the common law of Fiji on the efficacy
question, we are conscious that we are sitting as Judges of a Fiji Court.
Consequently, statements by judges which may have been appropriate for other
countries where a 'revolution' may have come about in a variety of ways need not
be adopted here. As we have emphasised, this case is unique in that it is the
Interim Civilian Government itself that seeks a ruling on the legality of its
regime, only some 7 months after it was established. Nor is Mr Prasad like the
appellants in the Seychelles and Grenada cases who sought to manipulate the
legal aftermath of a coup to avoid, in one case, payment of tax and, in the
other, a trial for murder. By contrast, Mr Prasad is just an ordinary citizen
seeking a return to normality.
see the 'efficacy' test, in the context of the common law of Fiji, as follows;
The burden of proof of efficacy lies on the de facto government seeking
to establish that it is firmly in control of the country with the agreement
(tacit or express) of the population as a whole.
Such proof must be to a high civil standard because of the importance and
seriousness of the claim.
The overthrow of the Constitution must be successful in the sense that
the de facto government is established administratively and there is no rival
In considering whether a rival government exists, the enquiry is not
limited to a rival wishing to eliminate the de facto government by force of
arms. It is relevant in this case that the elected government is willing to
resume power, should the Constitution be affirmed.
The people must be proved to be behaving in conformity with the dictates
of the de facto government. In this context, it is relevant to note that a de
facto government (as occurred here) frequently re-affirms many of the laws of
the previous constitutional government (e.g. criminal, commercial and family
laws) so that the population would notice little difference in many aspects of
daily life between the two regimes. It is usually electoral rights and personal
freedoms that are targeted. As one of the deponents said, civil servants such as
tax and land titles officials worked normally throughout the coup and its
aftermath. Their functions were established and needed no ministerial direction.
We derive little proof of acquiescence from facts of that nature.
Such conformity and obedience to the new regime by the populace as can be
proved by the de facto government must stem from popular acceptance and support
as distinct from tacit submission to coercion or fear of force.
The length of time in which the de facto government has been in control
is relevant. Obviously, the longer the time, the greater the likelihood of
Elections are powerful evidence of efficacy. It follows that a regime
where the people have no elected representatives in government and no right to
vote is less likely to establish acquiescence.
Efficacy is to be assessed at the time of the hearing by the Court making
Evidence of Control and Acquiescence
now must determine whether, on the evidence presented before us, we can be
Satisfied that (a) the Interim Civilian Government is firmly established and
there is no rival government and (b) the people are behaving in conformity with
the dictates of the Interim Civilian Government in such circumstances that their
acquiescence can be inferred.
relation to the first requirement of control, the violence and lawlessness that
ensued in the country following the events of May 19 took the country to the
verge of anarchy. The Interim Military Government successfully undertook the
task of restoring order. On 2 November, an attempt by elements of the army to
take control was effectively put down. There is no evidence of an effective
organised resistance or an attempt to displace the Interim Civilian Government
by force. That does not mean that there is not a 'rival government'.
filed by the former Prime Minister, Mahendra Chaudhry and former members of his
Cabinet claim that the Peoples Coalition is ready and willing to resume office
under the 1997 Constitution. Adi Kuini Speed in her affidavit said that the
Coalition still has the support of least 44 out of the 71 seats in the House of
Representatives and thus a comfortable majority, enough to form a Government. In
addition to this, two proceedings have been instituted in the High Court by
members of the Coalition challenging the abrogation of the 1997 Constitution.
first was commenced on 8 August 2000 by Ratu Isireli Vuibau, the former
Assistant Minister of Fijian Affairs, Mr Deo Narayan and Dr Gounder, both former
members of Parliament who supported the People's Coalition Government. The
defendants included Ratu Mara, the Commander, and Ratu Josefa Iloilo, the
Interim President. Dr Gounder deposed that the plaintiffs brought the action
also on behalf of other duly elected members of Parliament, Ministers, and
Assistant Ministers whose names would be filed in Court. The second, of 13
October 2000, was by Anand Kumar Singh, the former Attorney-General. The
defendants included Alipate Qetaki, the Interim Attorney-General, the Commander,
and Ratu Josefa Iloilo. This is evidence that demonstrates that there is a rival
government seeking through the Courts to assert its authority to govern.
far as the second requirement, that of acquiescence, is concerned, counsel for
the Interim Coalition Government relied on the continuing functioning of the
administration of government throughout the attempted coup and its aftermath,
for inferring acquiescence of the people in the Interim Civilian Government and
the abrogation of the 1997 Constitution. We consider that this factor affords
little proof of acquiescence.
his affidavit of 14 September, the Commander said:
"....that the interim government
headed by the Prime Minister Qarase has effective control and acceptance by the
majority of Fiji's people and the administration has acquired legitimacy by such
widespread acceptance by the people of Fiji."
cannot properly act on a bare statement of belief by the Commander that there is
widespread acceptance by the people, when there is a serious challenge to this
claim in the evidence filed for Mr Prasad. What is required is proof of facts
from which the Court can infer widespread public support for the Interim
Civilian Government and acquiescence in the purported abrogation of the 1997
Constitution. The Interim Civilian Government adduced no such evidence. Its
evidence came almost exclusively from persons holding official positions.
volumes of affidavits were filed on behalf of Mr Prasad to prove that people in
Fiji by and large do not support the Interim Civilian Government. We do not
intend to canvass this material in any great detail. It is summarised in
evidence suggests 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.
Interim Civilian Government faced an almost impossible task in demonstrating
real acquiescence on the part of the people when the evidence filed on behalf of
Mr Prasad which is summarised in Appendix B, shows that emergency legislation
remains in force, and has been used to inhibit public expression of dissent.
However, it should be noted that the press appears to be free to publish views
opposing the Interim Civilian Government.
Human Rights delegation sponsored by the Commonwealth Human Rights Initiative
visited Fiji between 27 August and 5 September 2000 and consulted with more than
25 civil society organisations and community groups in Suva, Nadi and Lautoka,
regional areas and Vanua Levu. They concluded at page 7 of their report:
"After consulting civil society
organisations, in particular civil society groups who represented sections of
the indigenous Fijian community, it became clear that there is little public
support for the military backed interim administration"
Courts have also recognised the continued existence of the 1997 Constitution.
Between 23 August when Gates J heard the case and 15 November 2000 when he
delivered his decision, four judgments were given by Judges of the High Court
which proceeded on the basis that the 1997 Constitution remained in force (see Prakash
v Native Land Trust Board, B.R. Kwon v Suva City Council, Singh v The
State and Doyle v Doyle.)
the light of the large volume of additional material put before the Court, this
appeal became a rehearing, to be decided on the current situation. The burden of
proving that the 1997 Constitution had been superseded lay on the Interim
Civilian Government, and the standard of proof is a high one, having regard to
the great public importance of the issues involved. Mr Blake accepted that he
had to satisfy the Court that the citizens of Fiji truly acquiesce in the new
constitutional arrangements and the Interim Civilian Government, in order to
justify the conclusion that it is now the legally valid government. The
affidavits filed on its behalf were directed at showing that it is in full
control and that all branches of government are working normally. They make no
reference directly to acquiescence, and it was left it to the Court to decide
what conclusions should be drawn from them on that subject.
most people will have noticed little difference between this and the former
constitutional regime in many aspects of their daily lives which they carry on
as before, but such passive compliance is hardly a persuasive indication of true
acquiescence in a government which has been in power for only about seven months
and severely restricts public protest. The affidavits produced on behalf of Mr
Prasad and summarised in the preceding section demonstrate that substantial
sections of the community do not accept the legitimacy of the present government
or acquiesce in it. It should also be remembered that the elected government has
said it will await the outcome of this appeal before taking any further steps.
the absence of any convincing evidence of real acquiescence, we must hold that
the Interim Civilian Government has not discharged the burden of proving
acquiescence and has accordingly failed to establish that it is the legal
government of Fiji. The purported abrogation of the 1997 Constitution has not
been justified and it remains in place. We make declarations to this effect and
of the current status of Parliament and the President. But we are not prepared
to adopt all the declarations made by Gates J; some are inappropriate while
others have been overtaken by events.
Legality of Intervening Acts
conclusion that the 1997 Constitution remained in force throughout raises the
question of the extent to which the decrees, executive acts and decisions of the
administrations since 19 May 2000 are to be recognised as valid. This point was
discussed in the Privy Council in Madzimbamuto v Lardner-Burke  1
AC 645, but the majority found it unnecessary to decide the question. At p726
Lord Reid referred to decisions of the Supreme Court of the United States
dealing with the situation after the American Civil War, in the former
Confederate States and he cited Horn v Lockhart (1873) 17 Wallace 570,
580 (84 US), where the Court said:
"We admit that the acts of the
several States in their individual capacities' and of their different
departments of government, executive, judicial, and legislative, during the war,
so far as they did not impair or tend to impair the supremacy of the national
authority, or the just rights of citizens under the Constitution, are, in
general, to be treated as valid and binding. The existence of a state of
insurrection and war did not loosen the bonds of society, or do away with civil
government, or the regular administration of the laws. Order was to be
preserved, police regulations maintained, crime prosecuted, property protected,
contracts enforced, marriages celebrated, estates settled, and the transfer and
descent of property regulated precisely as in time of peace. No one that we are
aware of seriously questions the validity of judicial or legislative acts in the
insurrectionary states touching these and kindred subjects, where they were not
hostile in their purpose or mode of enforcement to the authority of the National
Government, and did not impair the rights of citizens under the
In Madzimbamuto Lord Pearce said at
"I accept the existence of the
principle that acts done by those actually in control without lawful validity
may be recognised as valid or acted upon by the courts, with certain limitations
namely (a) so far as they are directed to and reasonably required for ordinary
orderly running of the State, and (b) so far as they do not impair the rights of
citizens under the lawful .... Constitution, and (c) so far as they are not
intended to and do not in fact directly help the usurpation ..."
respectfully adopt this statement as an expression of the law applicable to
(1) The Court makes the following
declarations in lieu of those made in the High Court:
The 1997 Constitution remains the supreme law of the Republic of The Fiji
Islands and has not been abrogated.
Parliament has not been dissolved. It was prorogued on 27 May 2000 for
The office of the President under the 1997 Constitution became vacant
when the resignation of Ratu Sir Kamisese Mara took effect on 15 December 2000.
In accordance with section 88 of that Constitution, the Vice-President may
perform the functions of the President until 15 March 2001 unless a President is
sooner appointed under section 90.
(2) The appeal is otherwise dismissed.
The respondent will have costs of Fifty thousand dollars ($50,000)
against the appellants to cover the appeal and interlocutory applications. In
addition the respondent will have the cost of printing and copying the
affidavits filed on his behalf, and other reasonable disbursements. The
appellants will also pay the reasonable accommodation and travel expenses of
respondent's counsel (limited to business class air fares), the amounts of these
expenses and disbursements to be fixed by the Registrar if the parties cannot
of the Attorney General, Suva for the Appellant
WHOSE OFFICERS GAVE AFFIDAVITS
Fiji Trades Union Congress representing 37 affiliated trade unions in Fiji.
(affidavit of Felix Anthony)
Fiji Public Service Association representing all civil servants and all workers
in statutory authorities other than teachers and nurses, (affidavit of Rajeshwar
Interfaith Search - a group that has been seeking since the 1987 coups to build
understanding among members of different religious groups, (affidavit of Tessa
Shree Sanatan Dharam Pratinidhi Sabha - a religious group which represents a
great majority of Hindu Indo-Fijians with a total membership of 200,000.
(affidavit of Harish Sharma)
Fiji Young Lawyers Association - a lawyers professional group that upholds human
rights and the rule of law under the 1997 Constitution, (affidavit of Prem Lata
Then India Sanmarga Ikya Sangam, a socio-cultural religious and educational
society with almost 100 000 members, (affidavit of Dorsami Naidu)
Fiji Human Rights Group, a non-governmental organisation for promoting human
rights, (affidavit of Roy Krishna)
Fiji Law Society (affidavit of Giyannendra Prasad a member of its Council, and
Deputy Speaker in the Parliament following the 1999 election)
Fiji Women’s Crisis Centre (affidavit of Edwina Kotoisuva)
Fiji First Movement (affidavit of Millis Beddoes)
NGO Coalition of Human Rights which represents non-governmental organisation
(affidavit of Akuila Yabaki)
Citizens Constitutional Forum formed in 1993 to bring together people from all
sectors of society to find solutions to Fiji's political and ethnic problems
(affidavits of Akuila Yabaki and Jone Dakuvula)
Fiji Women's Rights Movement, a multi-ethnic non-governmental organisation
dedicated to promoting democracy, good governance and human rights. (affidavit
of Gina Houng Lee).
OF EFFECT OF EMERGENCY REGULATIONS
(1) Affidavit of Tupeni Baba (9/2/01)
15 Large meetings have been made impossible because of the current emergency
(2) Affidavit of Felix Anthony
19 There are no public protests ... because the Fiji Trade Union Congress and
its members are constrained by the internal security decree which bans public
gatherings and protests.
(3) Affidavit of Edwina Kotoisuva
12 The Fiji Women's Crisis Centre was granted a permit to hold a peace rally on
November 26 2000. The rally was organised to provide an opportunity to discuss
peace and non-violence issues in our communities and promote and encourage the
same. Despite being publicised as a non-political rally, the permit was revoked
by the Interim Minister for Home Affairs, Ratu Talemo, less than 48 hours before
the rally was to be held.
30 The Interim Administration has refused to allow any means by which civil
society and the general public can meet to demonstrate their opposition to this
J The Public Service Commission chose to view the Blue Day Campaign (the public
were encouraged to wear blue to show their support for a return to parliamentary
democracy) as deliberate opposition against the Interim Administration and
issued a statement that all civil servants were not allowed to show their
support for the campaign by wearing blue.
(4) Affidavit of Gina Houng Lee
refers to the withdrawal of the permit for the peace rally on 26 November 2000.
(5) Affidavit of Akuila Yabaki
refers to the withdrawal of the permit for the peace rally on 26 November 2000.
(6) Affidavit of Harish Sharma
19 "... The Emergency Decree restricts our ability to peacefully
demonstrate our opposition and non-acceptance to the Interim Administration by
the holding of public meetings, marches or protest in any other manner."
(7) Affidavit of Prem Narayan (8/2/01)
5 The Fiji Young Lawyers Association has not been able to conduct a regular
meeting because the Decree allows the District Officer or a police officer or a
member of the armed of forces to disperse any meeting, procession or assembly.
Despite three attempts to call meetings I have not been able to secure a quorum
as the members fear for their safety.
(8) Affidavit of Millis Beddoes
3 I was questioned for two and a half hours in custody concerning my request to
citizens of Fiji to stay at home on 19th February 2001 so as to register the
non-acceptance of the Interim Administration, I am now awaiting criminal charges
to be laid under sections 15, 16 and 17 of the Public Order Act.
(9) Affidavit of Gina Houng Lee
17 "We are unable to express our dissent through public meetings,
assemblies or protest marches."
(10) Affidavit of Akuila Yabaki
20 The Citizens Constitutional Forum also had some success in its campaigns
through the local Radio Fiji and FM96 on the 1997 Constitution but this has been
stopped at Radio Fiji the Government owned station) because it was said to be
political. (See also Appendix G 15 December 2000) Para 20 and Para 32 We are
unable to publicly demonstrate through marches and rallies our public support
because of the oppressive and discriminatory exercise of police powers.
People's Coalition Government - Fiji Islands