Transcript: Fiji Court of Appeal judgment

As presented in court by Sir Maurice Casey

Republic of Fiji islands and Attorney General v Prasad

I must explain that the court is sitting with only four panelists. Sir Ian Barker has an urgent commitment elsewhere and flew out at 8 o'clock this morning.

But there is provision that the judgment of the court can be delivered by less than the full complement.

This was an appeal by the interim civilian government against the judgment of Justice Gates of the High Court of Lautoka on 15th November 2000 in which he upheld the continuing validity of the 1997 Constitution and made certain declarations.

After emphasising that the court is to decide only questions of law and is not concerned with political issues we set out the history of events leading up to this litigation. Highlights are the attempted coup by George Speight and his followers on the 19th of May, 2000, the emergency steps then taken by Commodore Bainimarama including his establishment of an interim military government and the purported abrogation of the Constitution on 29th May, 2000. The resignation of the President Ratu Sir Kamisese Mara on 15th December and the establishment of the interim civilian government.

On 4th of July, 2000, Mr Prasad commenced his legal challenge in the High Court and we describe the steps taken in that litigation leading up to the hearing before Justice Anthony Gates on the 24th of August in which there was very little evidence produced by the government. Leave was granted for it to file further affidavit evidence in the appeal and for Mr Prasad to reply. As a result, we received a great quantity of evidence and academic material transforming the appeal into a rehearing which took account of the events up to date.

In the light of claims that there was a general perception that the 1997 Constitution failed to protect indigenous Fijians we thought it appropriate to discuss it's history and contents pointing out its extensive safeguards of the rights of their rights and interests. We made particular reference to the electoral provisions and analyse the voting at the last election, in the light of the material put before us by counsel. This leads us to conclude that even with the first with a "first past the post" system, government would still have been the same; and claims that indigenous Fijians in particular did not understand the electoral system were largely unsubstantiated. We regard the Constitution as a reliable expression of the hopes and aspirations of the whole population, and see this as relevant in determining whether there has been popular acquiescence in the Interim Civilian Government.

We follow this with a discussion of the law, starting with the question of this Court's jurisdiction to rule on whether the Constitution has been abrogated, having regard to the fact that the Court owes its existence to that document. We are satisfied that we have such jurisdiction, and proceed to a consideration of the constitutional doctrine of necessity, which can give validity to otherwise unconstitutional action taken in the interest of public safety. We agree with Gates J that this doctrine could not justify the abrogation of the Constitution, nor validate the Interim Civilian Government. However, he failed to consider the possibility that the government could have acquired legality by exercising control over the State with the acquiescence of the people. We consider court decisions and academic writings which confirm that a usurping government may be recognised as legal in this way, and formulate a test of the kind of acquiescence necessary under Fiji conditions.

The Interim Civilian Government has the burden of proving that it is in firm control and that the people have truly acquiesced in it. There is no question about control, but there was no direct evidence of acquiescence produced by the Government, and the court was left to infer this from affidavits by officials indicating that all branches of government were proceeding normally, and citizens were acting in conformity with its requirements. We do not accept such passive acceptance as persuasive evidence of acquiescence, having regard to the short time the government has been in control and its suppression of public demonstrations of dissent, evidenced in the material produced by Mr Prasad. We also refer to the numerous affidavits by people and organisations expressing disapproval of the present regime, and to the fact that the elected government is said to be ready to take over and is awaiting the outcome of this appeal.

We conclude that the interim civilian government has not proved it has the acquiescence generally of the people of Fiji. Accordingly it cannot be recognised as the legal government. We then go on to consider how far its conduct of affairs aimed at maintaining normal government during the period it exercised power can be recognised as valid.

Result

1. The Court makes the following declarations in lieu of those made in the High Court:

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

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

 (iii) The office of the President under the 1997 Constitution became vacant when the resignation of Ratu Sir Kamisese Mara took effect on 15 December 2000. In accordance with 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.

3. 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 airfares), the amounts of these expenses and disbursements to be fixed by the Registrar if the parties cannot agree.