No 2 Post Coup Decrees
Alert dated 26 June 2000
1. Since our last Legislation Alert, the Head of the Interim Military Government ("IMG") has made five more Decrees. The main features of the Decrees are described below.
Decree No. 4: Emergency Decree, 2000
2. This Decree, which was made on 2 June, 2000, purports to continue the state of emergency originally declared by the President. Unless earlier revoked or extended by notice in the Fiji Islands Government Gazette, the Decree was valid for 14 days. On 15 June, 2000, its validity was extended until 30 June, 2000.
3. It contains provisions of the kind usually found in emergency legislation, and allows orders to be made for-
• prohibiting or dispersing processions, meetings and assemblies
• closing roads, streets, pathways, waterways and public spaces
• restricting the movement or allowing for the detention of individuals involved or suspected of involvement in breaches of the peace
• controlling entry into or exit from specified areas in Fiji
• curfews (currently from 8.00 pm until 5.00 am daily)
• restricting the possession or use of firearms and other dangerous weapons.
The Decree also allows members of the Military or the Police to use such reasonable force as is necessary (including the use of firearms) to maintain order and to prevent any imminent threat to life and property.
Decree No. 5: Administration of Justice Decree 2000
4. This Decree sets out to replace the provisions of the 1997 Constitution that dealt with judicial matters. It "re-establishes" the High Court and the Fiji Court of Appeal, and confirms that they have all of the civil and criminal jurisdictions that they had prior to May 29, 2000.
5. The Decree, however, purports to abolish the Supreme Court, which the 1997 Constitution established as the highest appeal court in Fiji. There were a number of appeals pending before that Court, and the Decree provides that those appeals are now to be heard by a five-member panel of the Fiji Court of Appeal. A panel may not include a judge who has previously dealt with the particular case.
6. Subject to confirmation by the Head of the IMG, all existing appointments to the High Court and Fiji Court of Appeal are deemed to continue. It is not clear whether the IMG's Head has as yet formally confirmed any appointment. However, apart from the departure of one High Court judge, the remaining High Court judges appear to be continuing as normal.
7. Serving judges are apparently not required to take the new oaths of allegiance and office contained in the Decree. The new oaths are in general terms and do not refer to the IMG or the Decree. They refer only to the 'Republic of Fiji' and 'the laws and usages of Fiji'
8. As an aside, last week the holder of the office of Vice President under the 1997 Constitution swore in a temporary judge of the High Court in accordance with the oaths and relevant provisions in the 1997 Constitution. This highlights the current uncertainty over whether the courts recognise the continued existence of the 1997 Constitution or its abrogation by the Head of the IMG.
9. The compulsory retirement ages for the Chief Justice and for High Court judges have been raised by five years to 75 years and 70 years respectively. This has raised some eyebrows, as the Chief Justice acknowledges that he drafted the Decree.
10. Apart from the appeals that were before the Supreme Court, the Decree does not say anything about the status of other cases that were pending before the High Court and Fiji Court of Appeal, or about pre-existing causes of action. A further Decree or a court ruling will no doubt resolve this uncertainty in the near future.
Decree No. 6: State Service Decree, 2000
11. The Decree contains similar provisions to those in the 1997 Constitution governing appointments to and removal from the public service. The bulk of public service positions continue to fall under the purview of the Public Service Commission, and the Disciplined Services Commission continues to have responsibility for senior positions in the Police and the Prisons Service.
12. The Constitutional Offices Commission, which the 1997 Constitution vested with responsibility for key independent public offices, is no longer provided for. The Decree, however, creates a new Legal Services Commission, which is responsible for appointing the Government's legal officers, including independent legal officers such as the Director of Public Prosecutions, the Solicitor-General and the Supervisor of Elections. The membership of this Commission comprises the Chief Justice, the President of the Law Society and the Chairperson of the Public Service Commission.
13. The Decree also provides for the continued existence of other independent officers such as the Ombudsman, the Auditor-General, the Commissioner of Police and the Governor of Reserve Bank and contains measures aimed at guaranteeing their independence from political interference. Like judges, independent officers may only be dismissed for their inability to perform their functions or for misconduct, and only after a recommendation of an independent tribunal headed by a person who holds or has held high judicial office.
Decree No. 7: Fundamental Rights and Freedom Decree, 2000
14. Decree No. 7 restores, almost verbatim, all of the fundamental human rights contained in the 1997 Constitution. The main changes are the incorporation of two amendments that were before Parliament at the time of the armed takeover. These were provisions to clarify that-
• a re-trial can be ordered after an appeal in a criminal case
• existing laws which prohibit same-sex marriages and same-sex relations are not to be regarded as discriminatory.
15. The Decree also contains provisions:
• allowing for affirmative action programmes in a manner more condensed than that provided in the 1997 Constitution
• to protect property from compulsory acquisition and to guarantee access to courts and tribunals for the resolution of disputes
• for the continued existence of the Human Rights Commission and makes clear that the Human Rights Act, under which private individuals and businesses are obliged to recognise various human rights, continues in force.
Decree No. 8: Citizenship Act (Amendment) Decree, 2000
16. This Decree inserts all of the citizenship provisions of the 1997 Constitution into the Citizenship Act without making any apparent changes. For practical purposes, the pre-existing citizenship laws continue to apply.