The Chandrika Prasad Case Ruling

Issue No: 203; 15 November 2000

(Chandrika Prasad v The Republic of Fiji and the Attorney-General of Fiji (High Court Action No. HBC0217.00L, Lautoka)

On 4 July, Chandrika Prasad filed an originating summons in the High Court with an affidavit in support seeking certain declaratory orders. The orders sought were:

a. that the 19 May attempted coup was not successful;

b. that the state of emergency proclaimed by the President on 19 May was unconstitutional and of no legal effect;

c. that the attempted abrogation of the 1997 Constitution was unconstitutional;

d. that the 1997 Constitution is still in force;

e. that the Parliament of Fiji still exists;

f. that the elected government is still the legitimate government; and

g. any other relief the court thinks fit.

The case was filed with the assistance of the Fiji Human Rights Commission.

The ruling on the case was delivered today 15 November by Justice Anthony Gates. The full written judgment of 37 pages will be made public tomorrow. The court made available the pages containing the declaratory orders and a few paragraphs preceding the orders. The relevant section reads:

". what is the status of what remains , namely the interim administration of Prime Minister Laisenia Qarase.

These for the most part worthy, talented and public spirited persons, were drawn into a government on a misunderstanding of what was possible following on from the emergency of the hostage crisis. But the rule of law means that the suspended state of affairs and the Constitution return to life after the stepping down of a responsible military power and after the conclusion of its work for the restoration of calm for the nation. The nation has much for which to be grateful to the military, and may yet have further need for its assistance to maintain stability. There is no constitutional foundation of legality for the interim government of for the Constitutional Review Committee.

In conclusion the military is invited and recommend by the court to ensure a smooth and amicable handover of Government to that which will soon be chosen by the incoming Prime Minister, following my orders below. The Constitution provides for a multi-party Cabinet, sometimes referred to as Government of National Unity (GNU). After the events which we have gone through in the last 6 months, all participants in the political process need to act unselfishly and wisely, and the GNU option may fruitfully be examined. That however is a political question for the parties concerned and not a matter for the court.

I must pay tribute to counsel on both sides for their industry, research and helpful submissions without which the Judiciary's task would prove so much more difficult.

Orders

In the result I make the following declaratory orders:

1. The attempted coup of May 19th was unsuccessful.

2. The declaration of the Stat eof Emergency by the President Ratu Sir Kamisese Mara in the circumstances then facing the nation, though not strictly proclaimed within the terms of the Constitution, is hereby granted validity ab initio under the doctrine of necessity.

3. The revocation of the 1997 Constitution was not made within the doctrine of necessity and such revocation was unconstitutional and of no effect. The 1997 Constitution is the supreme and extant law of Fiji today.

4. The Parliament of Fiji, consisting of the President, the Senate, and the House of Representatives, is still in being. Its incumbents on and prior to 19 May 2000 still hold office, that is Ratu Sir Kamisese Mara, who had stepped aside, and who remains President as originally appointed by the Bose Levu Vakaturaga (Great Council of Chiefs); the Senators are still Members of the Senate; the elected Members of Parliament are still Members of the House of Representatives. The status quo is restored. Parliament should be summoned by the President at his discretion but as soon as practicable.

5. Meanwhile owing to uncertainty over the status of the Government, it will remain for the President to appoint as soon as possible as Prime Minister, the member of the House of representatives who in the President's opinion can form a government that has the confidence of the House of Representatives pursuant to sections 47 and 987 of the Constitution, and that government shall be the government of Fiji."

In his judgment, Justice Gates made numerous comments about the conduct of the judiciary and the officers of the state.

He stated that the respondents (Attorney-General's office) deliberately tried to stall the case. He accused the respondents of :unethical conduct of those directing the respondents" on filing an appeal notice before even the case was decided, and for filing for leave for interlocutory order of stay of judgment. He stated that the A-G's office should have remained neutral and not act on behalf of the political government of the day. Instead of being neutral, the AG's office advanced the case of the interim administration. It also attempted to deny the applicant (Chandrika Prasad) access to court and legal remedies. The AG's Office also did not help the court by not referring to the leading authority on the subject matter, the case being Bavadra's challenge against the legality of the post-1987 coup regime which was deliberated on by Justice Rooney.

Judge Gates also strongly rebuked the Chief Justice and two judges for drafting the military decrees and for their conduct in not upholding their oath of office and the Constitution.

Justice Gates deliberated at length on the doctrine of necessity and stated that this doctrine is valid only to protect the Constitution and not to destroy it. He stated that there was no foundation, cause or genuine desire to remove the 1997 Constitution.

The judge ruled that the Qarase regime is illegally holding office, and that the Constitution Review Commission has no legal basis.

Responding to the judgment, the interim regime stated that it will appeal the judgment. The Attorney General hit out at the judge for "breaching procedures". The interim AG told the media today that he will seek a stay order on the execution of the judgment tomorrow morning.

The military also reacted. The army Commander, Commodore Frank Bainimarama stated that the army will respect the court ruling. The military spokesperson Major Howard Politini, however, stated that given the interim regime's decision to appeal against the ruling, the military will continue to support the Qarase regime.

END 15 November 2000

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