Dialogue: Fiji judgment sets example for world

GEORGE WILLIAMS* says that a Fiji court's constitutional verdict has strong implications for others intent on seizing power by force of arms.

The decision of the Fiji Court of Appeal is quite remarkable. It sets a powerful legal precedent that will resonate far beyond the Fiji Islands.

It is the first time that a court decision may restore a democratically elected Parliament displaced by a coup.

The decision will also act as a disincentive to aspiring coup leaders, who will be forced to contemplate not only overthrowing a Government but also the courts.

On May 29 last year, 10 days after George Speight seized Parliament, the commander of the Fiji Military Forces declared the 1997 Fiji constitution to be dead. The coup attempt by Speight had been quickly followed by another. Unlike Speight, however, the commander had the military might to enforce his will.

The taking of power by the military was not unlike many other coups around the world. Indeed, the 1987 coup in Fiji had set just such an example.

Shortly thereafter, on July 4, the powers of Government were transferred by the military to an interim Administration. It began the process of drafting a new constitution based upon the paramountcy of indigenous Fijians.

A legal action was lodged in the Fiji High Court on the same day. Chandrika Prasad sought a court order that the attempt to destroy the constitution was illegal.

He did not seek to undo the coup by violence. Prasad was an Indo-Fijian farmer who became a refugee when he and his family were forced off their land in the wake of the Speight coup attempt. His home had been looted and robbed, his livestock butchered, and his crops destroyed. He was threatened with death.

Rebuffed by the police, he turned to the courts for help.

I was asked to represent Prasad, and joined a team of Fijian lawyers. The action seemed futile. After all, even if it were possible to receive a hearing, and to win the case, what effect could a court decision have on a coup?

The case was heard by Justice Gates in August. In November, he decided that the constitution was still in force and that Parliament ought to be summoned to resume its democratic functions.

The case took a decisive turn after this decision. Instead of ignoring it, the Administration decided to appeal. It was one thing to abrogate the constitution; it was another entirely to deny the force of a decision by a respected judge, particularly when it was backed by the international community.

Even in the midst of a coup, respect for the rule of law and the Judiciary prevailed. For this, the Administration must receive credit.

Geoffrey Robertson joined the team for the hearing of the appeal. Suva was under a very tight military presence, including roadblocks and snipers on the court roof.

At the conclusion of the hearing, the Administration reaffirmed that it would accept the decision of this court on whether the 1997 constitution was still in existence.

Ultimately, the court rejected the appeal and held that the 1997 constitution remained in force. The five judges found that the administration could be recognised as lawful, and hence as the creator of a new legal regime, only if it had the support, or acquiesce, of the Fijian people.

The evidence, in fact, went the other way. Although they had not expressed their anger and frustration at the coup through violence, Fijians had made their opposition clear in many forms, such as through their churches, women's groups and an alliance of union and employer organisations.

The role played by the law and judges in the Fiji crisis is unique.

This is the first time that the law may promote a restoration of democracy after a coup.

Judicial intervention also has the potential to act as a circuit-breaker for the apparent cycle of coups in Fiji and to encourage non-violent resistance in the courts in other nations.

Prasad did not bring his action in order to restore the Prime Minster, Mahendra Chaudhry. In fact, Prasad admitted in his evidence before the Court of Appeal that he did not care for politicians.

He brought the case because he wanted to be treated with respect and to live peacefully with his family in his own house without fear of violence.

He believed that this required the rule of law and the basic rights provided for in the Fiji constitution, including his right to equality and to a democratically elected Parliament.

* George Williams is the Anthony Mason professor of law at the University of New South Wales, in Sydney.