Thursday, April 16, 2009

"Seriously deficient"

In a post on Tuesday, Scoop's Gordon Campbell hooks into the Fijian Court of Appeal's judgement [PDF] in Qarase vs. Bainimarama:

Apparently, under that latest reading of the 1997 Constitution, there was no prerogative power held by the Fijian President, no matter what breakdown in good governance or civil society had occurred. At the very least, this reading would seem to render the 1997 Constitution seriously deficient.
Hardly. Instead, what's "seriously deficient" is Campbell's unspoken assumption that such breakdowns must be dealt with by the prerogative power of the President. Because while the Court found that there was no prerogative power to deal with emergencies, it found such because that power had been explicitly assigned to the elected government under the direct and immediate supervision of Parliament by sections 187 - 189 of the Fijian Constitution:
In our opinion, the existence of s. 187 is as clear an indication as there can be that national security matters were not matters which were left to the prerogative. The existence of an implied right in the President arising from the prerogative, acting otherwise than on the advice of the Prime Minister to dismiss the government, to dissolve the Parliament and establish an Interim Government in the face of an emergency, is inconsistent with that provision.
Under the constitution, Fiji's President can only declare a state of emergency and suspend certain human rights on the advice of the Prime Minister and Cabinet, and then only if it is confirmed by Parliament within a very short space of time (and if there is no Parliament - e.g. they are in the middle of an election campaign - it is immediately recalled). Doing things that way - rather than on the whim of one man - is not a "deficiency". it is a strength. Unless, of course, you have some fundamental problems with democracy...

The court also found that there was no prerogative power to dismiss the Prime Minister, that having been (very firmly) nailed down by sections 98, 108 and 109. while the British monarch once had the power to dismiss "their" Prime Minister and appoint whomsoever they chose to advise them, any residue of that power which had survived William IV's unsuccessful dismissal of Melbourne (the last gasp of absolute monarchy) had been thoroughly eliminated by the Fijian Constitution's explicit codification. But beyond that, they also asked:

[W]hy does a matter of national security call for the dismissal of a Prime Minister and his Ministers and the dissolution of Parliament? Under the Fiji Constitution it is he and his Cabinet who have the responsibility to lead the country through a crisis, and to advise the President in relation thereto. It is entirely unclear to us why the first thing called for in a time of national emergency is the dismissal of the Prime Minister and his government.
It's a question the supporters of Fiji's despotism like Campbell and Trotter might want to ask themselves. Because as the court noted, once you ask that, it exposes what has really occurred: "a military coup or an unlawful usurpation of power".

(Oh, and in response to Campbell's latest, I have just one question to ask: if an election conducted under a system which, while imperfect, is still found to be "free and fair" by both international (Commonwealth, EU) and domestic observers (USP - sadly, the report does not seem to be online) is not "an over-riding litmus test of political legitimacy", then what the hell is? I knew Chris Trotter had problems with democracy; I had expected better from Campbell...)