Two and a half months on, the Fijian coup looks set to face the first real challenge to its authority, with lawyers for the ousted SDL party filing papers in Fiji's High Court challenging the legality of the interim government. And they're on solid legal ground. A similar challenge was lodged in the wake of the last coup against the interim government set up by the military and its decision to dismiss the Prime Minister in the absence of a formal vote of no-confidence in Parliament (Yabaki v President of the Republic of the Fiji Islands). The High Court ruled that it was constitutional, and if it was not, justified by the doctrine of necessity. The Court of Appeal took a dim view of the judgement, but as an election had been called, declared the issue moot. However, "because the situation may arise in the future – hopefully not in the aftermath of a coup" (talk about irony) it did make some comments on the constitutional issues, including this bit:
The Fiji Constitution, by the prescriptiveness of s109(1), denies the President such a right [to dismiss the Prime Minister with only "soundings" of the feeling of the House] as that given to the Governor [of Western Nigeria] in Ankitola. Consequently, it did not matter that his soundings may have indicated a general lack of support for Mr Chaudhry or indeed that Mr Chaudhry himself supported a dissolution - albeit with himself as caretaker Prime Minister. The framers of the Constitution appear to have been at pains to circumscribe the President’s power of dismissal of a Prime Minister and to have required the House and not the President to determine whether the Prime Minister has lost its confidence.
If the court follows its previous reasoning, then they are likely to find Commodore Bainimarama's purported dismissal of Prime Minister Qarase in the absence of a resignation or formal vote of no confidence similarly illegal. That will then open the whole can of worms of the "doctrine of necessity", and raise two key questions: is the overthrow of an elected government "necessary" simply because an autocratic thug with a gun says so, and whether an unelected regime can deliberately construct a situation post facto which justifies the "necessity" of their rule? If the latter is answered in the affirmative, then the courts might as well tear up Fiji's constitution now, because it will mean nothing.