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ACM Home arrow Anthems arrow Constitutional Essays arrow Lessons For Australia From Commonwealth Countries: The Pacific Region

Lessons For Australia From Commonwealth Countries: The Pacific Region Print E-mail
Written by Justice Ken Handley AO   
Monday, 20 August 2001
Fiji


Fiji became an independent nation within the Commonwealth of Nations in 1970 with a Constitution on the Westminster model which provided for a Constitutional Monarchy It was governed by the Alliance Party, led by Sir Ratu Mara, until the general election of April 1987 when a coalition of the Labor and Federation Parties led by Dr Bavadra, a Fijian, was elected. The Federation Party drew its support from the Indian community, while the Labor Party was supported by western Fijians and urban workers of both races. Ratu Sir Penaia Ganilau, a former Alliance politician, and a High Fijian Chief, was Governor-General.


Fiji for its size had quite a large Army, dominated by ethnic Fijians, and largely paid for by the United Nations which employed Fijian troops in Lebanon and the Sinai. On 14 May 1987, while Parliament was in session in Suva, Lieutenant Colonel Rabuka, in a bloodless military coup, arrested and detained Dr Bavadra's entire Cabinet. Colonel Rabuka suspended the Constitution, and declared himself the Chief Minister of an interim ruling council.

The Governor-General refused to recognise and swear-in Colonel Rabuka and his council. However instead of supporting Dr Bavadra, he dismissed the Ministry, dissolved Parliament, declared a state of emergency, and assumed executive control of the nation. In one sense therefore he completed the coup by withdrawing the legal authority of the elected Bavadra Government.

The Judges denounced the coup as illegal, supported the Governor-General, and refused to transfer their allegiance to the military government. A stand-off then followed. On 19 May, five days after the coup, the Governor-General appointed a council of advisers to help him run the country pending new elections under anew Constitution. The council included Colonel Rabuka. Dr Bavadra's coalition refused to co-operate, ,and another stand-off followed. Meanwhile Dr Bavadra had commenced proceedings in the Supreme Court challenging the Governor-General decision to dismiss his Ministry and dissolve Parliament.


Shortly before this case was due to be heard, a compromise agreement was reached on 22 September between the Governor-General, Dr Bavadra, and Sir Ratu Mara Anew caretaker, non-military, government was to be established and a bipartisan committee set up to review the Constitution charged with the task of achieving an early return to Parliamentary democracy, taking full account of Fijian aspirations within a framework for a multi-racial society in which all communities would be safeguarded. As part of this settlement, Dr Bavadra agreed to withdraw his case in the Supreme Court. My wife was very relieved because 1 was Dr Bavadra's senior counsel and was about to leave for Fiji for the hearing of the case.


This agreement was too much for Colonel Rabuka and he staged a second coup on 26 September. The Governor-General and the judiciary protested, and within a few days Colonel Rabuka proclaimed a Republic. The Governor-General was powerless in the face of the military coup and eventually resigned in October. This left the Judges in an impossible position and they too resigned later that month. The military regime appointed new judges in November and the transition to a Republic was complete.


What do these events teach us as we re-examine our own constitutional foundations? They show that constitutional arrangements and an independent judiciary cannot prevail against a well organised military coup, but that is hardly news. The Governor-General attempted to pursue an independent middle course between the Army and the Bavadra coalition government. This ultimately failed. In my own opinion, and acknowledging my professional association with Dr Bavadra, the Governor-General should have backed the elected Prime Minister and his actions in dismissing the Bavadra Ministry, dissolving Parliament and assuming executive authority were beyond his powers under the Fiji Constitution. 1 also believe that if the Governor-General in full uniform with his staff had gone to Military Headquarters immediately after the coup and ordered the troops back to barracks, his order would have been obeyed. He was a High Chief and Rabuka was a commoner. I believe the coup would have collapsed. However it is easy to be wise after the event, and the Governor-General was confronted with an unprecedented emergency.


In all of this I think there is no real lesson for Australia. We should not have a large standing Army with not enough to do, but there is no prospect of that. The events in Fiji in 1987 provide no support however for a change in our own constitutional arrangements. Indeed the capacity of the Crown's representative to stand out against the Army with the support of the Judges for 4 months shows the strength and resilience of a Constitutional Monarchy in a crisis.


Papua-New Guinea


The Governor-General of Papua-New Guinea, Sir Siri Eri, a Papuan, resigned in October 1991 and in November a new Governor-General, Wiwa Korowi, was elected by Parliament, nominated by the Prime Minister and appointed by the Queen. The resignation of the former Governor-General however was the culmination of a constitutional confrontation between him and the Prime Minister, Mr Rabbie Namaliu.


In September 1991 Mr Ted Diro, the Deputy Prime Minister and leader of the Papua-based Peoples Action Party, was found guilty by Mr justice Ellis in the Leadership Tribunal on 81 counts of corruption involving transactions with Malaysian, Singaporean and Indonesian interests. The Tribunal imposed a modest fine but barred Mr Diro from political office for three years, thus excluding him from the forthcoming 1992 general election.


The Governor-General, a former senior public servant and diplomat, was a fellow Papuan and had been the founder of the Peoples Action Party which Mr Diro then led. As required by law, Mr justice Ellis presented his report to the Governor-General whose duty it then was to endorse the report and dismiss Mr Diro.


However, the Governor-General refused to do this, and wrote to Mr justice Ellis rejecting his decision. He also formally reinstated Mr Diro, who had stood down during the enquiry, as Deputy Prime Minister, MP, and Minister for the Public Service. In the process he rejected constitutional advice from the Prime Minister that he either endorse the report of the Leadership Tribunal or resign.


The Prime Minister assembled a dossier of the relevant documents and despatched them with a senior public servant to London with advice to the Queen that she should remove the Governor-General from office. By the time the public servant had reached Singapore, the Governor-General had resigned, and so had Mr Diro.


The extraordinary powers of the Queen thus enabled, dare 1 say it, a recalcitrant Governor-General to be removed, without litigation, without delay or great expense, and without provoking a major crisis. This would not have been possible if Papua-New Guinea had been a republic.


Tuvalu


In the south west Pacific, there is a micro State known as Tuvalu which is a Constitutional Monarchy within the Commonwealth. It has an area of 26 square kilometres and a population of 9,000. Formerly known as the Ellice Islands, it became independent in 1978.


A general election in September 1993 resulted in a deadlocked Parliament of twelve with the two leaders, Mr Puapua and a Mr Paenui, each supported by six members. The Governor-General dissolved Parliament and called for a fresh election, but the former Prime Minister, Mr Paenui, remained in a caretaker role. During the short period before the general election, the Governor-General reached the compulsory retirement age, and the caretaker Prime Minister appointed Tomu Sione as Governor-General, allegedly to gain support from electors on his home island.

 
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