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Understanding the Fiji High Court judgment

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10 October 2008 07:59

Guest blogger: Sanjay Ramesh teaches at the University of Technology, Sydney, and is Senior Political Editor at the Sydney Fiji Times and Adjunct Fellow at the University of Fiji.

The 9 October High Court judgment on the case between deposed Prime Minister Laisenia Qarase and interim Prime Minister Commodore Frank Bainimarama focused on the reserve powers of the President. Qarase's legal team argued that the reserve powers of the President could arise only in a Chandrika Prasad-like state of affairs, where armed indigenous nationalists incapacitated the government and held members of the Peoples' Coalition Government hostage for 56 days. In the Prasad case, the High Court held that there was an imperative necessity created by exceptional circumstances not provided for in the constitution.

Qarase's legal team maintained that, during the 2006 tensions between the military and the government, there was no need for the President to act outside the constitution. But the High Court ruled that the President had certain reserve powers under section 109 (1) of the 1997 Constitution and that these extraordinary powers are allowed to the Head of the State. As a result, the actions of the President following the 2006 coup were judged legal and valid, including the decision to dismiss Prime Minister Laisenia Qarase, dissolve parliament, rule directly pending general elections, promulgate legislation and grant immunity.

The validity of the President's actions arises from the acceptance by the High Court that the events that unfolded in November and December of 2006 constituted a 'crisis' that provided legal legitimacy to the subsequent actions and measures taken by the President.

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