Justice blinked

They say that justice is blind, but the Full Court of the Fiji High Court seems to have blinked in giving its judgment last week in Qarase and Others v Bainimarama and Others.

As I read it, it was just too hard for them to find that the present government in Fiji is unlawful. This was not a time for Justitia fiat, ruat coelum. They held that:

“The decision of the president to ratify the dismissal of the prime minister and his ministers, to appoint Dr Senilagakali as caretaker prime minister to advise the dissolution of parliament, and the dissolution of parliament itself, are held to have been valid and lawful acts in exercise of the prerogative powers of the Head of State to act for the public good in a crisis…For the same reasons the further decision of the president to rule directly pending the holding of fresh, fair and accurate elections is upheld as valid and lawful.”

This shows the power of something equivalent to the maxim “possession is nine parts of the law,” though in its origin that phrase had a more restricted sense than it has since assumed.

Here are some passages from the judgment:

We do not feel it necessary to traverse all of the matters which we feel would have fuelled an intention on the part of the President to act using reserve powers. The history of the nation with its four coups, the ultimatums and the disputes between the Qarase government and the military, the constant state of strife, the presence of Australian warships in Fiji waters, and the occurrence of the military takeover a month previous, all would have forced the President’s hand to use such powers.

and

In life it is easier to improve someone else’s draft than to initiate one’s own creation. There are always many commentators ready to occupy the larger space of the auditorium but fewer to volunteer to act upon the stage. In the President’s case in dealing with the growing crisis in November and December 2006, the events of 5th December 2006, and then those of the restoration of 4th January 2007, the decisions to be made were for the President alone. None of them could have been easy. Shakespeare provides us with the apposite line for such an anxious responsibility “uneasy lies the head that wears the crown” [Henry IV Part 2 III i 30].

When judges are reduced to paragraphs like that one, you know that they must be on shaky ground and they must know that they are.

A more interesting point follows near the end:

We note the completion of a census as a necessary preliminary to the holding of accurate and fair elections. We take notice of the significant demographic changes brought to light from that survey which are likely to effect a permanent and growing dominance of the Parliament by the indigenous. As was the case in Bhutto v Chief of Army Staff PLD 1977 SC 657 we do not find it appropriate to issue directions as to a definite timetable for the holding of elections. No doubt the President will have uppermost in his mind the twin imperatives of the sanctity of fair elections on the one hand and the need for urgent return to democratic rule on the other. In Mitchell (at p.94) Haynes P said the court assumed that the Government would act with reasonable despatch

It’s the bit about demographic change which interests me: to what extent is that because the Indians have voted with their feet so far as they are able to, and left Fiji? It’s as though the court has decided that there is no use swimming against the tide.

And then there is this, coming out of nowhere:

“We also note the close similarities in the path chosen by the President with the advice tendered to him by the Great Council of Chiefs.”

That’s where things get really mysterious to me, because as far as I can make out, on at least one crucial matter (how soon elections should be held) the GCofCs gave quite different advice to the course of action adopted by the President.

In jurisprudence, the question of the succession of regimes has been a perennial chestnut. It was the pet problem of Hans Kelsen. There is no simple solution. Cases like this expose the same difficult co-existence in the domestic sphere of might and right which raises its head in questions of de facto and de jure sovereignty and control in international law.

One Response to “Justice blinked”

  1. Justice[s] blindsided « Stumbling on melons Says:

    […] By marcellous Last October, the Full Court of the Fiji High Court held that the removal of Mr Qarase and the assumption of power by Mr Bainimarama in December 2006 and […]

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