Friday, October 05, 2007

Fiji: Challenging the coup

Ousted Fijian Prime Minister Laisenia Qarase was in court today to challenge the coup which overthrew him. Qarase's argument is simple: President Iloilo did not have the power to dismiss him, and therefore the interim regime is illegal. And to my eye, he's on very solid ground: s109(10 of the Fijian Constitution is quite clear:

(1) 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.
Qarase hadn't lost a confidence vote, and there hadn't even been a suggestion that he would. And this position was backed by the Fiji Court of Appeal in Yabaki v President of the Republic of the Fiji Islands:
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.
(In this case, of course, there weren't even any "soundings" of elected representatives - just a demand from the military, backed by a gun to the head).

The military regime's response has been to fall back on the traditional enemy of democracy, "sovereign power", and claim that the President could do whatever he felt necessary in a crisis. Furthermore, they argue that this can not be reviewed by the court. In other word's, they're doing a Pacific version of Nixon's claim that the president is "as powerful a monarch as Louis XIV, only four years at a time". But the fact that the Fijian Constitution explicitly circumscribes the President's power to appoint and dismiss governments rather cuts off that argument. More interestingly, they're trying to use the 1975 dismissal of Gough Whitlam by Australian Governor-General John Kerr as a precedent. But in that case, there was at least the tissue of a (manufactured) crisis, in that in defiance of convention the Senate was refusing to pass a budget, and therefore supposedly couldn't function (in fact, there was plenty of time to act, and Kerr jumped the gun to overthrow a democratically elected government - but I digress). What crisis was there in Fiji? Again, nothing but a demand from the military that the government step down. And in a democracy, that simply shouldn't cut it.

In Yabaki, the Court of Appeal ultimately found that while the dismissal of the government was unconstitutional, subsequent elections had rendered the point moot. Here, they have no such cover, and will have to make a decision either way. The worry is that given the regime's interference with the judiciary and dismissal of judges, and the concern expressed in Yabaki over the disruption a finding of unconstitutionality might cause, the court might rule that the coup was illegal, but throw a solution in the "too hard" basket (or worse, overturn Yabaki and rule that the Fijian President is effectively a king). And that would be far worse than the current situation.