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Developments in FIJI: Circumventing the Appellate Court’s Verdict


Paper No. 226                        06.04.2001


by Dr. S. Chandrasekharan


Events are moving fast in Fiji.  The appellate Court upheld the ruling of the High Court of Fiji that the 1997 Constitution is still in place and that Parliament is not dissolved.  In a quick move to circumvent the court orders, the new President not only dismissed the duly elected Prime minister of Fiji but appointed his nephew and later Qarase again as interim Prime minister to conduct fresh elections.  While the Indo Fijians are being hard pressed from all quarters, the only redeeming feature is that the 1997 Constitution is still in place.

Appellate Court Judgement


The appellate court headed by the presiding judge Sir Maurice Casey, delivered its judgement running to 27 pages on 1st March, 2001, upholding the High court judgement earlier on the coup and subsequent developments in Fiji.  The declarations made by the court in lieu of those made in the High Court were

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

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

* The office of 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.

* The appeal of the government stands dismissed with costs.

Court Judgement Deftly Circumvented


The acting President Ratu Joseph Iliolo made use of a letter received from Mahendra Chaudhry earlier that he "is prepared to advise a dissolution of Parliament" so as to make way for fresh elections . . . , dismissed the Prime minister on grounds that he no longer enjoyed the confidence of the house.  The Acting President wrote in his letter to Mahendra Chaudhry "Acting in my own judgement under section 109 (1) of the 1997 Constitution . . . I hereby notify you that I have decided to dismiss (emphasis ours) you from your appointment as prime minister of Fiji with effect from 14 March, 2001."

Section (109.1) of the constitution says, we quote "The President may not dismiss a Prime minister unless the Government fails to get or loses the confidence of the House of Representatives and the Prime Minister does not resign or get a dissolution of the Parliament. "

Nowhere in the letter, Mahendra Chaudhry had mentioned that he had lost the confidence of the House of Representatives.  What he had written in good faith to overcome the constitutional crisis was used to dismiss him.  There were many other irregularities.  The Great council of Chiefs (GCC) did not consult the Prime minister in the appointment of the President or the Vice President as is required by the 1997 constitution.  Instead the President after appointment used the same constitution to dismiss the Prime minister.  The President then appointed his nephew Ratu Tevita Momoedonu as Prime minister for a day which makes him eligible for life long pension. Then the President accepted the advice of the interim Prime minister( his nephew) to dissolve the house and appointed Qarase again as Prime minister for conducting fresh elections.

As expected a writ has been filed in the Suva High Court challenging the decision of President to dissolve the Parliament and appointing Laisenia Qarase as the Prime minister.  In the murky situation now obtained in Fiji it is doubtful whether any stay will be given by the court There is no response from the army which in the first place abrogated the 1997 constitution and installed the interim government of Qarase.  A former co-deputy prime minister of Mahendra Chaudhry’s government Adi Kuini Speed accused the ruling authorities of committing "a fraud on the nation" after promising to abide by the decision of Court of Appeals.

Elections Announced


In a move suspected to preempt any move by the Commonwealth Ministerial Action group to decide against readmitting Fiji into the Commonwealth, the care taker government announced that a general election will be held between August 27 and September 7.  Chaudhry has, without challenging the constitutional validity of the interim governments’s orders, demanded that the election should be internationally monitored. He has rightly said that the care taker government cannot be relied upon to run a free and fair elections.  The army cannot also be relied upon either to ensure smooth elections.

Indo Fijians Facing Hardships

In the mean time the Indo Fijians continue to face many hardships; Some of them are

* There is no law and order in the interior and many Indo Fijian families have been victims of violence by roving bands of ethnic Fijians.  Many cases have not been reported at all

* In a sinister move to deprive the Indo Fijian farmers who cultivate the leased lands, renewal of lease has been deliberately slowed down.

* The Native Lands Trust Board is encouraging the land owners to squeeze the tenant farmers by demanding exorbitant payments.

* Some of the school buildings run by ethnic Fijian Indians are being taken over by landowners for failing to pay "goodwill" payments.  This has just begun, but there is a fear that many schools all over Fiji will be affected.

For over a century there had been racial amity in Fiji.  There is no reason why racial harmony cannot be restored now.  The coming elections will have to be conducted in such a way that voting takes place in a free and fair manner.  Both the racial groups will have to strive for cross racial votes.  There are many such ifs.  Mahendra Chaudhry will have to be less demanding.  The Methodist Church should distance itself more from politics.  The Great Council of Chiefs cannot expect absolute loyalty anymore.

Besides the commonwealth, Australia and New Zealand have a big role to play to ensure stability in that part of the Pacific.  Australia had shown a pro active initiative in the case of East Timor and its willingness to play a positive role.  It is hoped that it does it again in Fiji.