Wednesday, 6 December 2006

The unconstitutional Bainimarama

The Herald reports the events in Fiji here, with a timeline. The short summary:
On November 13 [Commodore Bainimarama] issued nine demands to the Qarase government which included the withdrawal of the bills.
At 6pm (7pm NZT) on December 5 he seized control, installed himself as President, sacked Qarase, named his own man as PM and sent soldiers onto the streets with police.
Fiji is a constitutional democracy. Whatever claims Bainimarama might make regarding his actions, he cannot be claiming to be acting constitutionally. We can see why he wants to appoint himself President:

Section 87 Commander-in-Chief
The President is the Commander-in-Chief of the military forces.

But he can't just appoint himself at the barrel of a gun, the President needs to be properly appointed by the Great Council of Chiefs (the Bose Levu Vakaturaga):

Section 90 Appointment of President and Vice-President
The President and Vice-President are appointed by the Bose Levu Vakaturaga after consultation by the Bose Levu Vakaturaga with the Prime Minister.

And even if you concede that he can get over that hurdle, he cannot simply dismiss the PM off his own bat:

Section 109 Dismissal of Prime Minister

(1) The President may not dismiss a Prime Minister unless the Government fails to get or loses the confidence of the House of Representatives and the Prime Minister does not resign or get a dissolution of the Parliament.
(2) If the President dismisses a Prime Minister, the President may, acting in his or her own judgment, appoint a person as a caretaker Prime Minister to advise a dissolution of the Parliament.

So just to summarise: based on the reports merging from Fiji, it seems to me that Bainimarama has no claim to be acting constitutionally.

UPDATE 1: From NBR: "[Bainimarama] said Prime Minister Laisenia Qarase's refusal to agree to President Ratu Josefa Iloilo's request to resign had left Fiji in "limbo" and forced him to act." Well, unless the Prime Minister lost a motion of no confidence in the House of Repreentatives, the President appears to have no power to dismiss Qarase. And the President may appoint a caretaker Prime Minister, but only the Great Council of Chiefs "after consultation with the Prime Minister" may appoint the President.
The Commodore said the constitution would largely remain in place, and the judiciary and other arms of government would continue to operate.
It would appear he's talking nonsense, but that he's paying lip service to the constitution suggest a respect for the institution, even if only in the breach. And here's the hope:
[Bainimarama] said he would next week ask Fiji's Great Council of Chiefs to reappoint Mr Iloilo as president. The caretaker government would then be appointed. In the meantime, a military council would offer advice. Commodore Bainimarama said once the country was stable and electoral rolls amended, elections would be held.
We shall see.

UPDATE 2: Perhaps the only wrinkle here is that Fiji was not, perhaps, on a completely constitutional footing. Laisenia Qarase was not originally an elected Prime Minister -- he was appointed by Bainimarama after the Commodore rescued Fiji from the Speight coup in 2000, and it's been reported that from his point of view Qarase has violated the understanding between them made at that time. But Qarase's election in 2006 surely put an end to any post-coup period of unconstitutionality?

LINKS: Fiji: What's happened so far - Herald
Fiji's Constitution, adopted 23 September, 1998 - (German) Institute for Public Law
Full coup launched in Fiji - NBR
Fiji General Election, 2006 - Wikipedia

RELATED: Politics-World, Constitution


  1. An excellent analysis PC.

    The interesting thing is that the President appeared to back the coup (he was installed by Bainimarama after the 2000 coup anyhow...) and sacked the government, which was unconstitutional anyhow (the President can't sack the government unless the PM loses confidence, which is the convention of GG is meant to follow, although Kerr didn't in 1975).

    It's also interesting because it mirrors what happened in '87 - the Gov-Gen sacked Bavarda's government at Rabukas behest, as he was at the wrong end of a gun also.

  2. I guess once the Constitution is considered disposable, and breaches of it go unpunished, return to constitutional rule is all but impossible.

  3. I thought that the meaning of the word "Coup" is to act unconstitutionally, period. Whatever the dressing-up of words used by the military is just to make the public feel good. There is no need to analyze , 'ACT', 'CLAUSES', 'SECTION', blah, blah, blah,... since the word 'Coup' means 'Unconstitutional' government takeover by force.

  4. As I said on my blog the man is an immoral dictator!

  5. Oh, I dunno Kane. The argument could be made that--unlike Key and Clark--he is at least honest and open in his methods.
    Is the barrel of a gun so much worse than stealing from the citizens to fund a corrupt regime?

  6. No, it isn't really, but he is still evil. Helen and co are evil, too, but that doesn't mean he isn't.

    hey, can we have a coup? Oh no, I'm going to get charged for sedition now! ;-P


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