Legality of Government Action Since 29 May 2000
Introduction
1. In its historic decision in The Republic of Fiji and another v Chandrika Prasad (Civil Appeal No. ABU 0078/2000), the Fiji Court of Appeal declared that the nation's 1997 Constitution remained in effect. From this it was clear that both Commodore Bainimarama's Interim Military Government ("IMG") and Mr Qarase's subsequent Interim Civilian Government, ("ICG") were without lawful authority.
2. We have received numerous queries about the effect of the Chandrika decision on legislation made and other actions taken by the IMG and ICG, as well as on transactions involving private parties that flowed from both Governments' legislation and actions.
3. At stake is the legality of:-
• decrees, regulations and other subsidiary legislation made by the IMG and ICG. The full list is set out in a schedule to this Alert. The legislation includes:
- the mini-budget and budget packages that comprised income tax, customs, excise, tax-free zone and controversial VAT amendments
- decrees to replace constitutional provisions
- emergency legislation under which a number of people have been prosecuted and convicted
- far-reaching legislative amendments in respect of Crown and Native Land
- immunity legislation relevant to the Speight Group and supporters
- the Hotels Aid Act amendment (extending the Short Life Investment Package (SLIP))• contracts, agreements, understandings, licences, statutory appointments, approvals and directions made or issued by members of the IMG and the ICG
• action taken by civil servants, statutory bodies and private individuals on the assumption that the IMG's and ICG's laws and policy directions were to be obeyed.
• criminal convictions and other judicial decisions arising out of laws made or brought into effect by the IMG or ICG.
The Principles
4. The legality question was obviously on the minds of the Fiji Court of Appeal judges. In a short passage at the conclusion of their judgment, the judges quoted from a decision of the Privy Council in Madzimbamuto v Lardner-Burke [1969] 1 AC 645, and indicated that the applicable legal principle for Fiji was that:-
"… acts done by those actually in control without lawful validity may be recognised as valid or acted upon by the courts, with certain limitations, namely:
(a) so far as they are directed to and reasonably required for ordinary orderly running of the state, and
(b) so far as they do not impair the rights of the citizens under the lawful Constitution, and
(c) so far as they are not intended to and do not in fact directly help the usurpation."
A Case-by-Case Approach is Necessary
5. This statement is helpful as a broad indication of how the legality of IMG and ICG legislation and actions, as well as resulting private transactions and rights are to be measured. However, the three criteria referred to by the Court of Appeal are very broad and require that each government action or private transaction be examined individually. They leave the Courts to decide, as a matter of discretion, how each criterion is to be applied when called upon to pronounce on individual cases.
6. We do not believe it is possible to lay down firm rules on the legal effect of the wide range of actions initiated by the IMG and ICG. Each legislative provision, executive action, or judicial decision, and action taken by a public servant, statutory authority or private individual must be individually tested against the applicable principles. However, for general guidance:
• the IMG took power with effect from 29 May 2000. Government actions (unrelated to the Speight uprising) in the 10 days before that date are probably lawful
• action taken by public servants and statutory bodies, even if involving persons appointed by or under unconstitutional Governments, are more likely to be considered to be valid under the necessity/implied mandate or the de facto legal doctrine
• routine legislation of the IMG or ICG is likely to be considered valid, especially if the legislation might have been passed by the constitutional People's Coalition Government, and more so if it had previously been proposed or supported by that Government
• legislation that furthered the special objectives of the IMG or ICG or the Speight coup - including the immunities extended to them - is less likely to be considered valid
• a presumption of validity is likely to apply to private transactions even if conducted under the aegis of the laws made by the IMG and ICG
• judicial decisions taken under laws of the IMG or ICG might be reversed on appeal, if that right is still available. If, however, the time to appeal has lapsed, the decision will be presumed to remain valid.
What about "The Blueprint"?
7. The controversial "Blueprint", a policy document mapping out proposed measures to assist indigenous Fijians in commerce, was only a plan - it did not itself purport to take any measures. The 2001 Budget contained $23 million worth of measures under the heading of "Affirmative Action" that may come under scrutiny. Affirmative action is a recognised principle of the 1997 Constitution, so the "Blueprint" measures are not automatically invalidated.
What can be done to make things more certain?
8. The easiest and tidiest way of resolving the question would be for Parliament, if recalled, to pass validating legislation clearly identifying the laws and actions that are to be treated as valid, and those that are to be treated as invalid. This would help to give certainty to everyone, at least with respect to legislation and important executive action taken in the IMG/ICG period.
What if these acts are not challenged?
9. Obviously, if the actions of the IMG/ICG are not called into question in the courts, they will be treated by those who rely on them as valid. However, there is theoretically no time limit for obtaining declaratory orders that a particular law or measure is invalid. So it is better, in the case of doubt, to seek certainty at the earliest point.
What about the present?
10. In the current confused constitutional situation, it is necessary to be cautious about relying on ICG actions, assurances and measures. In strict legal terms, the ICG is acting with even less lawful authority than it previously had, having been clearly told by the Fiji Court of Appeal that it has none.
Conclusion
11. Unless and until clear validating legislation makes its way through Parliament, it will remain an open question how far individual legislative, executive and judicial decisions and related private transactions taken since 29 May 2000 are valid and the Courts may be required to decide on their validity.