Even knowing where to begin the story is difficult. Put shortly, last week, the Fijian Court of Appeal ruled that the appointment of “Interim Prime Minister” Bainimarama was unconstitutional. Accordingly, President Iloilo scrapped the constitution and sacked the country’s judges, including the three Australian judges who handed down the decision. The country is now under emergency rule.

A potted history of the dispute – ethnic tension

The roots of the problem (as with the roots of many problems around the world today) lie in the country’s colonial past. Fiji became a colony of Britain in 1874, and gained independence in 1970.

British and Australian sugar cane plantation owners brought out indentured labourers from India to work on the sugar cane fields. A large proportion of those labourers settled in Fiji. Since then, there has been tension between indigenous Fijians and Indo-Fijians.

Indo-Fijians outnumbered indigenous Fijians from 1956 to the 1980s, but since the first military coups in 1987, there has been a steady stream of Indo-Fijian immigrants leaving Fiji. Indigenous Fijians now outnumber Indo-Fijians, and Indo-Fijians only make up 35% of the population. A large number of those Indo-Fijians who emigrated were skilled labourers. The Fijian economy has suffered as a result of losing these people.

The difficulty with the operation of the democratic system in Fiji has been that the two groups have made up almost equal proportions of the population at various times. The Fijian political parties draw their support predominantly from either the Indo-Fijian or the indigenous Fijian community. Therefore, the party which wins power is seen by many as representing the sole interests of a particular ethnic group rather than the interests of all Fijians.

One of the primary sources of tension between indigenous Fijians and Indo-Fijians is land ownership. Indigenous Fijians have title to a large proportion of the land, but since the 1930s, have leased it to Ind0-Fijians. The Indo-Fijians complained about lack of security of tenure. On the other hand, indigenous Fijians have a deep and almost spiritual attachment to the land. Further some indigenous Fijians complained that Indian tenants “hogged” all the good land in Fiji, and wanted to ensure that it was leased to them in perpetuity.

Brij V. Lal in Islands of Turmoil – Elections and Politics in Fiji (2006, ANU Press) says at page 28:

The bulk of the Indo-Fijian population lived in the sugar cane belt of Fiji, constituted over 80 per cent of the sugar cane farmers in the 1980s, and produced 90 per cent of the country’s sugar, most of it on leased native land of limited tenure. The Indo-Fijian tenant community wanted more secure tenure, extending beyond 30 years. Fijian landowners, apprehensive of losing control over a vital resource and some themselves wanting to enter commercial agriculture, resisted.The ensuing stalemate generated bitterness, further fuelling ethnic tensions.

During the 1990s, the 30 year leases granted under the Agricultural Landlord and Tenant Act began expiring, and have not been renewed, to the detriment of the economy.

Another tension has been the prominence of Indo-Fijians in the civil service, and in professions such as lawyers, doctors, nurses and accountants. This can  in part be explained by different attitudes towards education within the Indo-Fijian and indigenous Fijian communities. Indo-Fijians prioritised education because their land tenure was precarious, whereas indigenous Fijians did not prioritise it to the same degree.

It is worth noting that the Great Council of Chiefs (Bose Levu Vakaturaga) is plays an important role in indigenous Fijian politics. It was initially formed in 1876 as an advisory body by the British colonial rulers, but has had an important political and constitutional role in post-colonial Fiji. It consisted of 55 members, mainly hereditary chiefs. As it represents the nobility of Fiji, it is generally a conservative body.

A succession of coups

The first military coups in 1987 occurred when Lieutenant Colonel Rabuka overthrew a multi-ethnic government which had strong support from the Indo-Fijian population. Fijian nationalists saw the multi-ethnic government as a threat to the rights of indigenous Fijians. Thus, Rabuka claimed that his coup was justified because of discrimination towards indigenous Fijians. After this coup, many Indo-Fijians left Fiji and emigrated elsewhere.

In 1990, a new constitution was ratified. It provided that the offices of President and Prime Minister were reserved for indigenous Fijians, along with two-thirds of the seats in Senate and a substantial majority of the House of Representatives. These discriminatory provisions were eventually overturned by a constitutional revision in 1997, which led to a new Constitution. However, indigenous Fijian rights over land remain enshrined as by constitutional guarantee.

In 1999, after democratic elections, the People’s Coalition was elected. The People’s Coalition was dominated by the largely Indo-Fijian Labour Party but also included three parties supported mainly by indigenous Fijians. Mahendra Chaudhry became the country’s first Indo-Fijian Prime Minister. Fijian nationalists saw this as a win for the Indo-Fijian community to the detriment of indigenous Fijians.

In May 2000, Fijian nationalists led by failed businessman George Speight staged a putsch and held Chaudry and other members of Parliament hostage. This putsch was supported by Fijian nationalists. A State of Emergency was declared and there was violence and looting particularly in Suva, as well as threats to Indo-Fijians.

On 29 May 2000, Commodore Bainimarama, the commander of the Fijian Armed Forces, took over government, and declared martial law. He purported to abrogate the constitution, and appointed an interim government. Laisenia Qarase was appointed as Prime Minister. A legal challenge to Qarase’s appointment was mounted. Initially, Gates J ruled that the interim government was illegal and that Chaudry was still the legitimate Prime Minister (Prasad v Republic of Fiji [2000] FJHC 121). The interim government had tried to argue that it was entitled to seize power according to the “doctrine of necessity”.  Gates J said:

Whatever is done however should be done in order to uphold the rule of law and the existing constitution. Necessity cannot be resorted to in order to justify or support the abrogation of the existing legal order. The doctrine is valid only to protect not to destroy.

…

The doctrine does not permit necessity to be used as a means of subverting the existing constitutional structure either by abrogating the existing legal order or by bypassing the path laid out for lawful amendment. It may in a fit case allow for a short-lived temporary suspension.

Accordingly, the abrogation of the Constitution and the appointment of an Interim government were not valid.

On appeal, five members of the High Court affirmed Gates J’s judgment (Republic of Fiji v Prasad [2001] FJCA 2).The High Court rejected the contention that the abrogation of the constitution was justified because the preferential voting system had produced an outcome detrimental to Fijians ie, an Indo-Fijian Prime Minister who could erode the rights of indigenous Fijians. The Court found that the Fijian Constitution protected the rights of indigenous Fijians.

Qarase stood down for a period of two days (from 14 – 16 March 2001) while a former minister of the Chaudry government called a general election and ratified Qarase’s position as Prime Minister. In the democratic elections held later in 2001, Qarase’s party won power, and Qarase was again instated as Prime Minister.

However, Qarase refused to admit members of Chaudry’s party to his Cabinet. Chaudry challenged this decision, citing s 99 of the Constitution, which provided that the Prime Minister must form a “multi-party Cabinet”. In July 2003, the Supreme Court upheld Chaudry’s challenge.

During 2005 and 2006, there were further tensions between the Fijian military and the government. The military strongly opposed certain policies of the Qarase-led government, including the early release from prison of people implicated in the 2000 coup, and legislation allowing the establishment a “Reconciliation and Unity Commission” with the power to grant amnesty to perpetrators of the 2000 coup, as well as a Land Tribunal Bill designed to give Fijian landlords more power over their land. Bainimarama said that the Qarase government was racist, and that its legislation suited only a few people, not the country as a whole. The Qarase-led government was returned to office in 2006 after elections, but tensions still simmered between the military and the government.

In late 2006, Bainimarama made various demands of the Qarase government, including withdrawing a bill promoting indigenous Fijian coastal rights and legislation with the potential to forgive perpetrators of the 2000 coup. The demands were not met, and Bainimarama took control of the Fijian government. Qarase was deposed as Prime Minister, as was President Iloilo, although Iloilo was reinstated in 2007 and remains President. On 5 January 2007, Iloilo appointed Bainimarama as “Interim Prime Minister”. Bainimarama sees himself as the protector of Fijian multiculturalism.

Legal challenge to appointment of Bainimarama as “Interim Prime Minister”

Qarase mounted a constitutional challenge to the legitimacy of the actions of President Iloilo. The Fijian High Court initially held that the actions of President Iloilo were legal.

However, on 9 April 2009, the Fijian Court of Appeal held that the actions of President Iloilo in appointing Bainimarama as “Interim Prime Minister” were not legal. (Hat tip to Larvatus Prodeo for the link to the judgment). The President did not retain prerogative power to act in the way that he did, and (pursuant to Prasad) the doctrine of necessity did not operate to justify the interim government. It held that the President should appoint an independent caretaker Prime Minister who would declare general elections. Derek Barry at Woolly Days also has an excellent post summarising the various actions of the parties thereafter. Interestingly, he was in Fiji just before the latest crisis occurred, and there was no indication that this upheaval was on the horizon.

In any case, on 11 April 2009, as stated at the beginning of this post, Iloilo abolished the Constitution, sacked all the judges and assumed power. He also reappointed Bainimarama as “Interim Prime Minister”. Foreign journalists have been expelled, and strict censorship is in place. The head of the Fiji Law Society, Dorsami Naidu, was taken into custody last Tuesday and interrogated about correspondence and e-mails he had sent which were critical of the regime. He was released without charge the next day.

The regime has indicated that Bainimarama will have a further 5 years in power, with elections to be held in 2014. The President has also indicated he will reestablish the courts and the judiciary. Meanwhile, Bainimarama has indicated in a speech to Fijian civil servants that his present government represents a new legal order:

A new Legal Order means there is no longer the old.

There is no need to speculate as to what happened, how it happened, what should have happened or what should not have happened.

What is, is now, and the future.

Global Voices has an interesting spectrum of responses from bloggers – from despair and disbelief, to skepticism and cynicism as to the motives of the coup leaders, from support for the Bainimarama regime’s efforts to fix injustice, to anger at the Court and surrounding countries for painting the Bainimarama regime into a corner.

Conclusion

When I first started writing this post, I had a superficial understanding of the issues — a military coup leader had deposed a democratically elected leader — how could this possibly be justified?

My research has indicated that the position is a little more complicated. Qarase himself is hardly adverse to assuming power in an unconstitutional manner when it suits him, although it has to be said that at least fresh elections were called promptly after the 2001 decision found that his appointment as Interim Prime Minister was not legal.

Bainimarama’s motives are possibly more complicated than I first perceived — he has argued that he is trying to stop the promulgation of unfair and racially discriminatory laws — although there are many who argue that he is merely using this as a pretext to extend his personal power.

The whole debacle just proves that the law is not always the best solution to fixing a political problem. Rather than moving Fiji back towards democracy as intended, the court’s decision has moved Fiji further towards military dictatorship. The upshot of these latest developments cannot be positive for Fiji, no matter what the motive. Australia should encourage Fiji back along the path towards democracy; but the difficult question is how Australia can help without pushing the Bainimarama regime into an even more intransigent position.