THERE are powers and duties associated with the President's role, amicus of the court, Dr Shaista Shameem said in her submission in the High Court yesterday.
Dr Shameem said there was an assumption often made that the Fijian Parliament was sovereign but this was not true. She pointed out that Fiji had constitutional sovereignty.
"The Constitution binds Parliament," Dr Shameem said.
She said the distinction between parliamentary sovereignty and constitutional sovereignty was important as it highlighted the role of the judiciary and courts in constitutional interpretation. The Constitution of Fiji contained a provision that could be employed by the President as a prerogative of power.
"This may be reviewable to the extent expressed in Section 194 (10)."
She said the President, as head of State, was required to preserve the Constitution. She said the real test of justiciability in this case between Qarase and others and the State and others was in the relationship between Section 194 (7) and 194 (10). Section 194 (7) states a person, authority or body which functions are conferred by the Constitution has power to do everything necessary or convenient to be done for, or in connection with the performance of those functions.
Section 194 (10) states a provision of this Constitution to the effect that a person or authority is not subject to the direction or control of any other person or authority in the performance of functions or the exercise of powers is not to be construed as precluding a court of law from exercising jurisdiction in relation to a question whether the first mentioned person or authority has performed the functions or exercised the powers in accordance with this constitution or whether that person or authority should or should not perform the functions or exercise the powers.
Dr Shameem said the Chandrika Prasad case was mounted two months after the Constitution was abrogated in 2000. In that case the court upheld the validity of the 1997 Constitution.