If a coup d’état overturns the rule of law, then it is both unusual and potentially self-defeating for a court to rule on its legality, writes constitutional authority, Dr. Anne Twomey. She says that this is why cases on coups are both rare and the object of fascination.
In a scholarly article, but one readily accessible to non-lawyers, she asks two fundamental questions First , how does a court of a country that has been subject to a coup d’état accommodate the strict application of the rule of law with recognition of the reality of a new governing regime and the serious risk to public safety that might flow from its judgment?
Second, to what extent does the ‘doctrine of necessity’ justify extra-constitutional action?
Dr. Twomey draws on cases in Australia on the consequences of long standing constitutional breaches, for example where a double dissolution is given in error.
This article, “The Fijian coup cases – The Constitution, reserve powers and the doctrine of necessity”, discusses how the Fijian courts have dealt with these dilemmas. It is relevant to point out that some of the judges involved are Australians.
The paper is published in the Australian Law Journal, Vol. 83, No. 5, pp. 319-330, 2009 and is accessible as Sydney Law School Research Paper No. 09/26
….the Fijian Court of Appeal’s decision…
On 9 April 2009, the Fijian Court of Appeal, comprising Powell JA, Lloyd JA and Douglas JA, held that the actions of Commodore Bainimarama in seizing executive authority in December 2006, dismissing the Prime Minister, Laisenia Qarase, and dissolving Parliament were invalid, as was Bainimarama’s appointment as Interim Prime Minister.
The Court declared that in the circumstances it would be lawful for the President of Fiji, as a matter of necessity, to appoint a caretaker Prime Minister to advise that Parliament be dissolved and writs issued for an election.
Instead, President Iloilo abrogated the Constitution and appointed Bainimarama as Prime Minister until the holding of elections by 2014.Dr Twomey writes that the Court of Appeal’s judgment needs to be understood in the light of previous Fijian coups and the judgments of the courts in relation to their legal consequences. These cases raise fundamental issues concerning the rule of law, the codification of reserve powers, the exercise of executive power in an emergency and the extent to which actions outside the Constitution may be legally justified by the doctrine of necessity.
…the care needed in moving from a constitutional monarchy….
The case , she says, highlights the care that must be taken in moving from a constitutional monarchy to a republic. The prerogative powers of the Crown in a constitutional monarchy need to find a legal basis under the Constitution of a republic if they are to continue.
( We would add that the grafting of a politicians' republic onto a constitution which has been designed for a constitutional monarchy is a demanding task. In such a constitution, the Crown is a central and ancient institution. What can replace it? This was the reason for one of Australia's greatest constitutional lawyers, the late Professor PH Lane to argue that republicans should design a completely new constitution, and not just try to graft their republic onto the present one.)
This series of Fijian cases on the validity of coups highlights the difficulty the courts face in imposing strict compliance with the law while at the same time recognising political reality and the risk to public order and safety. To what extent, Dr. Twomey asks, should a court take into account the likely consequences of its decisions?
The Court of Appeal was certainly conscious of the risks of ‘social upheaval and disruption’ that might arise from its decision in the Qarase case and it crafted the form of relief, taking into account those risks. It did not let those risks, however, influence its ultimate decision about the lawfulness of the actions involved in dismissing the Prime Minister, dissolving the Parliament and establishing the interim Government.