Chiefs have last chance to avoid terrible bloodbath

What took place on 5 December was a military coup and not a civilian coup. It was however a continuation of the coup culture that began in 1987. Curiously, Commodore Frank Bainimarama has so far not interfered with the 1997 Constitution. He has however warned that his transitional regime can rule for 50 years if the Great Council of Chiefs delays appointing a new president. He also warns that if the chiefs are planning to bring back the Qarase government, they will have another thing coming. What does he have in store for the chiefs? Will the Commodore simply take complete control of the nation, sideline the GCC, and become the Head of State, and run the country under a series of decrees. If he decides to travel down that path he would, in terms of law, have completed the 5 December ‘glorious revolution’, based on the doctrine of effectiveness where the overthrow of the old legal order can be seen as part of a ‘glorious revolution’

On 19 May 2000 George Speight and his co-conspirators seized Parliament. In response the late President Ratu Sir Kamisese Mara declared a state of emergency. On 27 May Ratu Mara appointed an acting Prime Minister, Ratu Tevita Momoedonu who advised him to prorogue Parliament and then resigned. Ratu Mara prorogued Parliament for six months. Two days later the Police Commissioner informed Ratu Mara that the Fiji Police Force could no longer guarantee the security of the nation. The same night a meeting was held between Ratu Mara and Commodore Bainimarama. Although Ratu Mara did not resign as President, the Commodore assumed power and imposed martial law.

Afterwards, the Commodore issued several decrees. On 14 July the recently deposed Prime Minister Laisenia Qarase, who claimed Speight’s coup was God’s plan, was appointed as Interim Prime Minister and received overwhelming support from the Great Council of Chiefs. On the day Mr Qarase took over the leadership of the country, a farmer Chandrika Prasad filed the now celebrated legal challenge in the Lautoka High Court. On 15 November Justice Anthony Gates, basing his decision on the Doctrine of Necessity, ruled in the Commodore’s favour that he was no usurper (later disputed by the Court of Appeal) but also declared that the 1997 Constitution was still in place.

The Interim Government could have simply ignored the Gates judgment. As the Court of Appeal judges later noted in their judgment, it was to the Interim Government’s credit that instead of simply ignoring Justice Gates’ ruling, it appealed to the Court of Appeal on the grounds of effectiveness, that it was now effectively in control of the country. As one of Mr Prasad’s lawyers, Professor George Williams later noted, a court exercises a supra-constitutional jurisdiction in determining whether a revolution ought to be given lawful recognition. The onus to prove that the new regime is ‘effective’ lies with the usurper.

Cullinan CJ of Lesotho High Court spelt out one test of effectiveness in Mokotso v HM King Moshoeshow as follows: ‘A court may hold a revolutionary government to be lawful, and its acts have been legitimate ab initio, where it is satisfied that (a) that government is firmly established, there being no other government in opposition thereto; and (b) the government’s administration is effective, in that the majority of the people are behaving, by and large, in conformity therewith’. The Lesotho High Court reached the same conclusion in the subsequent case of Makenete v Lekhanya in 1993. In 1989 Cullinan CJ had upheld that a new regime had been created in Lesotho as a result of a 1986 coup by the paramilitary forces, and again, in 1993 Ackerman JA recognising as lawful another coup that had taken place in 1990 by the paramilitary forces.

In the Prasad case, the Court of Appeal was however not prepared to extend the effectiveness test by adding a new criteria, namely whether the new regime acknowledged basic human rights as evidenced by international obligations assumed by the nation. It however ruled that in the case of Fiji, the effectiveness test of the Laisenia Qarase’s Interim Government had not been satisfied because there was a rival government striving for power, namely that the ousted Peoples Coalition Government was ‘ready and willingly to resume office under the 1997 Constitution’ and that ‘passive resistance is hardly a persuasive indication of true acquiescence in a government which has been in power for only about seven months and severely restricts public protests’. Looking back at the Court of Appeal judgment, the court was wrong in arriving at its decision, for shortly afterwards the Peoples Coalition Government broke into two factions – one led by Mr Chaudhry and the other by Dr Tupeni Baba. There was no rival government in waiting. In the process, Mr Qarase continued to hold on to power until the 2001 general elections.

What is the difference between 2000 and 2006, and why we cannot rely on the post 2000 coup rulings etc as a precedent. Firstly, Commodore Bainimarama and his senior military officers have executed a military coup, unlike 2000 where their actions had arisen from a civilian coup cum a deadly hostage crisis. He has announced, whether rightly or wrongly, that under the Doctrine of Necessity, he has assumed presidential powers and dismissed the Qarase government. He has declared a state of emergency, dissolved Parliament, and has thrown up a security cordon around the capital city. Some are calling upon him to demonstrate the evidence of the doctrine of necessity. Just because the Constitution has not been abrogated or suspended does not mean that the Commodore is not the new ruler of Fiji. The question is whether he is effectively in control?

Although there is no Interim Government in place, there is also is no rival government in waiting – i.e. the SDL-FLP multi-party government, as was the case with the Peoples Coalition Government, and even than subsequent events proved the Appeals Court was wrong. Mr Chaudhry, while urging the Commodore to return executive authority to Ratu Iloilo is now on record as saying that he hopes that the President calls for fresh elections, as he (Mr Chaudhry) believes that the Qarase government will never return. Even Mr Qarase now concedes that his return to power depends on the will of the military.

Let us however hope that the Commodore remains out of the seat of power. Ideally, Mr Qarase could be persuaded by the GCC to resign, paving the way for Ratu Josefa Iloilo to remain as President, and to move the country forward. On the other hand, if Mr Qarase still refuses to co-operate, the President, if re-appointed by the GCC, could use his reserve powers in the Constitution and sack him under the Doctrine of Necessity and run the country with those who have applied to run the nation. The other way the military can continue to exercise its authority for at least four years (until the next scheduled election) is for it to let the elected MPs (to be paid a quarter of their current salaries) continue to remain elected representatives. There is however nothing preventing the Parliament and/or the Interim Government or a Government of National Unity to agree to regular consultation with the Military Council or Presidential Council of Advisors – with veto powers and to implement proposals from the Council of Advisors.

The so-called Beddoes Plan is attractive on paper but is fraught with problems. Mick Beddoes’s own inclusion might not go down well with the people, for he had voted with the Government on the 15 per cent VAT increase in the 2007 budget. How can we also accommodate Poseci Bune and Krishna Datt who have been expelled from the Fiji Labour Party? What about the fate of the FLP MPs who voted against the budget? Will the military allow Mr Qarase back into Parliament? Also, we must not forget that the so-called multi-party government was on the verge of collapse because of the differences between Mr Qarase and Mr Chaudhry. What is needed, as a first step is perhaps the re-appointment of the President to begin negotiations with the Commodore? The fate of the Vice-President is another matter of contention.

The Commodore has warned that he could rule Fiji for the next half a century, which is an unrealistic expectation? His men however have the finger on the trigger to let off their guns, which have remained silent since 5 December. The choice is whether to save the nation or the Constitution or perhaps both.

A Decree is the highest law in a military regime. It has hegemony over the Constitution. Fiji however comes first over the Constitution – always.

The Commodore is now effectively the new ruler of Fiji. Whether he is effectively in control is an academic and legal debate.

The chiefs have a dilemma- whether to allow the militants to confront the Commodore or to encourage the moderates to co-operate with him. What is sure is that a Rwanda or a Uganda is in the making if no resolution is found to the standoff between the chiefs and the military. The deposed Prime Minister Qarase has already found it to his political and personal cost by taking on the Commodore under the sulu of democracy and constitutionalism.

The Commodore has the firepower, and perhaps the will power, to rule Fiji by the gun for a long time in the South Pacific- a spectre that must be avoided at all cost.

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