Author: Scott MacWilliam

The October 2008 decision of the Fiji High Court which provided support for the continued rule of Commodore Frank Bainimarama and the military was roundly condemned, especially by lawyers and academics. There was vociferous encouragement for a legal challenge to the country’s Appeal Court, although the capacity of members of this court to over-turn the decision and pronounce against the country’s military rulers was itself questioned.

Only a few people, including myself through this Forum, publicly warned that the legalistic condemnation was unwise. The reasoning behind the warning was that attacking the High Court’s decision in order to defend the over-turned government headed by Laisenia Qarase and the sanctity of the 1997 Constitution was not politically sound.

On April 9, 2009 the critics of the earlier judgment received what they had asked for. The Appeal Court over-turned the previous decision and advised the President to appoint an interim government. In the words of the judgment, such a government should be headed by a ‘distinguished person independent of the parties to this litigation as caretaker Prime Minister’.

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Author: Scott MacWilliam

While much attention focuses on the legal principles involved in the 2008 High Court decision in Fiji, less public notice is directed at the 1997 Constitution and some of the laws which have flowed from this document. Lawyers in particular have a long history of regarding upholding the rule of law as an almost sacred principle, regardless of whether a law or Constitution is meritorious by other principles, such as whether the law is just or the Constitution democratic.

Nor are those who defend the rule of law always aware that for others, legalism can form the basis for a political strategy in support of unjust and/or undemocratic laws. Read more…