No 1 Post Coup Decrees
Introduction
1. As of 29 May 2000, the Republic of Fiji Military Forces, under the leadership of its Commander, Commodore Josaia Bainimarama, has assumed political control of Fiji.
2. The new government has styled itself the "Interim Military Government" ("IMG"). Its early legislative actions have been to revoke the 1997 Constitution but otherwise to try to maintain a "business as usual" approach to existing institutions and laws. The business of Government previously carried out by Ministers will now be carried out by Commodore Bainimarama and his delegates/advisers (if and/or when they are named).
Martial Law
3. At his press conference announcing the takeover last night, Commodore Bainimarama stated that "martial law" is now in force in Fiji.
4. "Martial law" is sometimes used to describe a system under which all citizens are treated as if they were subject to the same rules of discipline as soldiers and are subject to the jurisdiction of military tribunals. Senior military personnel have confirmed that that is not the type of martial law to be applied.
5. It is intended to introduce the second form of martial law, which involves the formation of the IMG (which may include a mixture of military personnel and civilians). The IMG will make laws in the form of Decrees and will exercise governmental powers under those decrees until a handover to a civilian government, which it has said it intends to do under a new Constitution (for which no time-frame is given). In essence, this is a repeat of the situation which existed after the second military coup in September, 1987.
6. The Head of the IMG, Commodore Bainimarama, will exercise the power to issue Decrees. Whether or not the Decrees have legal effect must be determined according to the legal doctrines of necessity and effectiveness. In a nutshell, the Decrees will eventually be recognised as legal if the people of Fiji and the various arms of the Government recognise and obey them.
7. Senior army personnel have confirmed as of midday today that eight Decrees have so far been made. The first three, which have now been printed and published, are summarised below.
Decree No. 1: Fiji Constitution Amendment Act 1997 Revocation Decree 2000
8. The first of Commodore Bainimarama's Decrees, this wholly removes the 1997 Constitution. However, various key constitutional provisions dealing with the judiciary, the public service and the government financial system are restored (with some modifications) in Decree No. 3 (see paragraph 15 below). Other provisions may be restored in future Decrees.
Decree No. 2: Existing Laws Decree 2000
9. The second of the Decrees is an important one. This 'saves' all laws which existed before the military takeover (apart from the Constitution itself and any law that has no meaning without the Constitution). This means that the bulk of Fiji's legislation remains in effect.
Decree No. 3: Interim Military Government and Finance Decree 2000
10. The third Decree sets out the basic structure of the new IMG and contains vital provisions regarding Government liabilities (contractual and otherwise).
Power to make laws
11. Sections 2 to 5 make clear that laws will be made by the IMG in the form of Decrees (or by regulations etc if Decrees or existing laws give such powers). A Decree is made when it is signed by the Head of the IMG.
Power to Govern
12. Executive powers - (ie the kind of powers normally exercised by Ministers on behalf of the President) are now vested in the Head of the IMG, Commodore Bainimarama. These powers may be exercised directly or through subordinates.
Executive Council
13. In governing, Commodore Bainimarama will be assisted by an Executive Council of which he will be the President. He has the power to appoint members of the Executive Council. These members are likely to be similar to Ministers with separate portfolios. It is likely that executive power will be delegated to individual members of the Executive Council.
Existing laws
14. Section 8 of Decree No. 3 again states that all pre-existing laws other than the 1997 Constitution remain in force or have effect but with any modifications which are necessary to make them conform with the Decrees. To the extent that legislation is affected by the Constitution, this leaves considerable room for legal argument. Otherwise, all powers under the existing laws which were exercised by the Prime Minister or a Minister are now vested in the Executive Council (but are likely to be delegated to individual members).
The Courts
15. Section 9 of the Decree restores all the Courts, judicial offices and other public authorities. These are declared to remain in existence notwithstanding the revocation of the Constitution. They would therefore continue to exist as institutions. It would be a personal decision for each individual judge, magistrate or public office holder whether he or she is prepared to continue in his or her position.
Government Property and Funds
16. The Decree also declares all Government property to vested in the Head of the IMG in trust for the Government until a new Constitution is "proclaimed and promulgated".
Contracts and Securities
17. Section 10(2) and (3) states that all pre-existing contracts and arrangements, as well as securities, remain enforceable against the IMG and its Consolidated Fund.
Budget System
18. The tenor of Section 16 of the Decree suggests that a new budget will be presented to the Executive Council within the next 28 days. This and future Government expenditure must be approved by Decrees.
Pending Litigation
19. The three published Decrees do not specify what will happen to pending litigation. It is very likely that a provision on this subject is included in one of the remaining Decrees. A future update will be issued upon the publication of those Decrees.
Conclusion
20. As with all situations of this kind, the legality of the above legislation is "fluid" and dependent upon public and judicial acceptance. Judges petitioned by the public may not accept these laws; the IMG may then decide it does not accept the Judges; the people may decide they do not accept the IMG! A "shakedown" period is inevitable.