I have in mind here some of the radical critics of “juristocracy” and “constitutionalism”, such as Ran Hirschl and Martin Loughlin, who have emphasised the dangers of judicial encroachment into the political sphere.
To what extent has that been true of the Pacific? New Zealand Foreign Minister Winston Peters just last week spoke at the Oxford Union warning that judicial overreach could threaten democracy. The risks are real enough, as judges on Fiji’s Supreme Court recognised in their August judgment on the 2013 Constitution.
I was listening to a fascinating lecture earlier this month at the Law School in Wellington by South African Constitutional Court judge Kate O’Regan where she rightly made the point, against the critics, that what is often called the “third wave” of democratisation from the 1970s until recently, involved numerous countries adopting democratic constitutions with justiciable Bills of rights. Her own country, South Africa, was a critical case. Fiji and most of the Pacific Island countries might also be included.
I want to argue that the Pacific courts have navigated most of the tricky borderline cases, when judges had to make decisions with huge political ramifications, relatively well, even if one might dispute some of the legal reasoning used to advance these verdicts.
It is easy to paint a very bleak picture of the rule of law and democracy in the Pacific. That is what emerges in the news media. That is what sells newspaper column inches in Australia and New Zealand, or London and Washington. That is what pleases editors. But it misses something critical.
All of the Pacific Islands, bar Fiji, have survived as parliamentary democracies since independence. Regular elections have been held, the judiciary has remained reasonably independent (with some exceptions, e.g. Kiribati and Nauru) and the media has been reasonably free (again, with exceptions).
Only Fiji has witnessed repeated coups. I count three, not four, four and a half, five or six. Each Fiji coup has two separate phases; first an illegal overthrow of government and then, separated in time, the abrogation of the constitution. That’s also what is unusual about Fiji’s coups. What is more usually compressed into a single event is separated into two in Fiji:
1987, 2000, 2006. Why? What conclusion can we draw from that? It is that, in Fiji, coup perpetrators have undertaken coups without envisioning the full repercussions of their actions. So a coup in December 2006 could be described as a “clean-up campaign” as if it were akin to a rubbish collection day along the Suva waterfront.
Nowhere else has had similar experience to Fiji. If we discount the 1893 overthrow of the Hawai’i monarchy by white settlers, the only other “coup” in the Pacific was the June 2000 overthrow of the government in Solomon Islands. Then Prime Minister Bartholomew Ulufa’alu was removed at gunpoint by a “joint operation” between the Malaita Eagle Forces (MEF) and the police force’s paramilitary wing, but the Governor General remained in office and parliament sat within a month to select a new Prime Minister (although the resultant government was in thrall to the MEF). While Ulufa’alu contested the constitutionality of his own removal, he omitted to challenge the appointment of his successor, Manasseh Sogavare, who went on to serve four terms as Prime Minister over 2000-01, 2006-7, 2014-17 and 2019-24, i.e. ending just last year. The second phase witnessed in the Fiji coups, removal of the Head of State (or Governor General) and abrogation of the constitution, never happened in the Solomon Islands in 2000. Nonetheless, the formal continuity of the 1978 Constitution had little impact on the lawlessness that prevailed over 2000-2003.
In other Pacific countries, there have been plenty of seeming threats of coups, but these are often perpetrated by disgruntled military, paramilitary or police officers angered over pay and conditions, as in both Papua New Guinea and Vanuatu, or they have been triggered by other political crises, as in the so-called “barbecoup” in PNG in 1990, which was influenced by the Bougainville crisis. In January 2012, a mutiny at the Taurama barracks in the Papua New Guinea (PNG) capital Port Moresby was even justified by its perpetrator as if it were intended to implement a decision of the Supreme Court.
“I once again am now calling on … parties and the head of state to respect the constitution and comply with the orders issues by the supreme court immediately’ and ‘if this call is not heeded, I may be forced to take necessary actions.”
PNG’s 2011-12 Constitutional Crisis
This event occurred in the midst of Papua New Guinea’s biggest constitutional crisis since independence. Long serving Prime Minister Sir Michael Somare had left the country for heart surgery in April 2011. His health further deteriorated, and the family announced that the ailing leader had stepped down. As rivals hovered anticipating regime change, the Speaker – hitherto a Somare loyalist – declared the Prime Minister’s post vacant, though without following critical provisions in the constitution. In the ensuing August 2nd parliamentary vote, opposition leader Peter O’Neill was elected Prime Minister. Yet after a spectacular recovery in health, Somare returned to PNG in September and reclaimed his former position. PNG’s Supreme Court upheld his claim in December 2011 and again in May 2012, prompting a bitter and protracted power struggle between the supporters of Somare and O’Neill.
Those legal judgments left the judiciary at loggerheads with the legislature, which together with senior civil servants reaffirmed support for Peter O’Neill. Alongside these rival claimants of the Prime Ministerial portfolio, two distinct governor generals were appointed in December. Different police chiefs were installed associated with each camp. The fallout included Yaura Sasa’s failed mutiny, the storming of the High Court chambers in a futile effort to arrest the chief justice and a bid to delay elections (triggering rather bewildered Australian foreign minister Bob Carr to threaten sanctions). Ultimately, these various disputes were settled by the July 2012 general election, from which O’Neill’s People’s National Congress emerged as the largest party with 27 of the 111 seats. In an extraordinary reconciliation after such a protracted and acrimonious conflict, Somare joined the resulting O’Neill-led government, as did two other former prime ministers, the late Sir Julius Chan and Paias Wingti, which is testimony to the extraordinary Melanesian recuperative capacity for burying the hatchet even in the aftermath of major political crises.
PNG is often depicted as a lawless place, largely due to tribal fighting in the highlands and to major unrest and lawlessness in the major cities, but PNG is also an extremely litigious polity. So while some scholars call it a “disorderly democracy”, there is also a certain order in the mayhem. A photo appeared in The Fiji Times in December 2011 captures both that unruly quality and a certain respect for the constitutional offices of state, since it shows PNG’s leading politicians trying to breach a police cordon to secure an audience with the Governor-General hoping to obtain recognition as the legitimate government.
A vital role that the courts have played in PNG and across Western Melanesia is in pushing back against executive dominance of the legislature. In PNG, Solomon Islands and Vanuatu, incumbent Prime Ministers have sought to avoid no confidence motions by delaying parliamentary sittings or, in PNG, using parliamentary committees to vet and find fault with such motions before they can be tabled. In PNG, prime ministers have sought to give themselves protracted “grace periods” when they cannot be challenged, to extend the period of notice required for a no confidence motion and to raise the number of signatories, but the courts have repeatedly struck down these laws as unconstitutional and rightly so. Similar issues have been raised in the Solomon Islands, though there the legislation was watered down even before it was passed in 2014, and in Vanuatu where laws purportedly to strengthen political parties were passed in a referendum in 2024. We have yet to see what happens when those laws are tested before the courts.
Samoa’s 2021 Constitutional Crisis
In Samoa, easily the biggest post-independence challenge to the rule of law came in the wake of the April 2021 election. The ruling Human Rights Protection Party (HRPP) had governed almost continually since 1982, but that election left it with 25 seats in the 51 member parliament. The only recently formed FAST Party also had 25 seats, but it gained the support of the solitary independent who had won the remaining seat. Outgoing Prime Minister Tuila’epa Sa’ilele Malielegaoi refused to concede defeat and the Head of State, Tuimaleali’ifano Sualauvi Va’aletoa II, issued a promulgation purporting to cancel the April election outcome. The Chief Justice found himself locked out of parliament on the morning of May 24, 2021, by the clerk acting on behalf of the speaker. As a result, the new government led by Fiame Mata’afa was sworn into office inside a tent erected outside the parliament. The Chief Justice was not present.
When called upon to deliberate, the Supreme Court upheld the election result and struck down the Head of State’s attempt to call a fresh poll. The judges rejected the claim that the Head of State had “reserve powers” to cancel the election result and found that he had an “obligation” to call a meeting of the Legislative Assembly within 45 days of the general election. The court ruled that the former speaker had no legal right to halt the opening of parliament on May 24 and that his directions “should have been ignored by all concerned”. At first, the court tried to coax the Head of State into fulfilling his constitutional duties, but the judges patience eventually snapped. The Court of Appeal insisted that the Head of State was “a servant of the Constitution, not its master” and that he had no power that “sits alongside” or “trumps” the Constitution. The earlier conducted swearing in ceremony was declared to be in line with the Constitution. Fiame Mata’afa had been legally sworn into office as Prime Minister on May 24.
The Samoan 2021 crisis was complicated by the fact that the constitutional position of the Supreme Court had itself been the critical issue during the 2021 campaign. It was a split in the ruling HRPP over three 2020 laws designed to reconfigure the legal system that had led to the formation of the FAST Party. Previously, appeals from the Land and Titles Court were occasionally sent to the Supreme Court, but the 2020 reforms envisaged the establishment of a separate “Land and Titles Court of Appeal and Review”. This would have “supreme authority over the subject of Samoan customs and usages”, leaving the ordinary court system responsible for criminal and civil cases. Hence, that dispute touches on what has been a critical issue for Sāmoa since independence: the existence of dual sources of ultimate authority; customary and imported law (each an alternative “rule of recognition”, to borrow HLA Hart’s expression), but as with other political reforms ostensibly aimed at strengthening traditional authority these potentially counterintuitively reinforced the powers of the central state (After all, Tuilaepa also wanted to reconstitute the Land and Titles Court and appoint its judges afresh).
These law changes encountered vigorous opposition, particularly from within the judiciary itself and from the Samoa Law Society. In April 2020, a year before the election, nine judges – including the acting Chief Justice – wrote to the Samoan Law Reform Commission expressing what they described as “the collective view of the judiciary”. The judges condemned the “sweeping amendment to the role and jurisdiction of the Supreme Court and Court of Appeal of Samoa’ claiming that this “effectively splits Samoa’s judicial system into two: the criminal and Civil Courts on the one hand and the Courts of Samoan Custom and Tradition on the other”, with the latter becoming a “new, parallel and entirely separate Court structure”. They emphasised the necessity of a “single Apex court” so as to “bring finality, conformity and consistency to the decisions of the courts based on precedent” and warned against the “attempt to import customs into every aspect of Court decision making”. Those Bills were passed by parliament in December 2020 and certified into law by the Head of State in January 2021. But the incoming FAST government never implemented the 2000 law establishing a separate Court of Appeal. A signature achievement of Fiame Mata’afa’s recently concluded four years as Prime Minister was to pass a constitutional amendment to reverse those 2020 laws.
The Fiji 2000 and 2006 coups and their aftermath
Law courts are nowhere particularly good at dealing with coups or imposed authoritarian constitutions not least because the first question they invariably ask is about the source of their own jurisdiction, as we saw in August here in Fiji. As a consequence, some legal scholars argue that courts should declare themselves unable to address such “meta-legal” political questions, but that is a conclusion many judges are understandably reluctant to reach, for one reason or another. Many regimes owe their origins to revolutions or other unconstitutional political eruptions, so how much time must elapse before courts are to be allowed to rule on the legality of a political order?
In 2025, the Supreme Court was asked by Fiji’s Government to deliberate on the status of the 2013 Constitution. In the wake of a December 2006 coup, that constitution had been promulgated by decree by a military-backed regime to replace the abrogated 1997 constitution. Its amendment provisions had been so contrived as to effectively rule out the possibility of change by requiring 75 per cent support of all registered voters in a referendum. On that legal basis, coup leader Frank Bainimarama won two elections in 2014 and 2018,but narrowly lost a third in December 2022. The incoming administration, comprising the former opposition, signalled a preference for constitutional change.
Yet the judges on Fiji’s Supreme Court had not only been appointed under that 2013 Constitution. The questions posed to the Court by the Fiji government also presupposed their endorsement of that foundational law. Without this, they had no jurisdiction. The judges were thus caught between Scylla and Charybdis: whether to uphold a constitution imposed on the people of Fiji without their consent or to reject the foundation of their own authority and thereby render themselves unable to reach any verdict. To get out of that impasse, they deployed a “rule of recognition” to selectively endorse the 2013 Constitution excluding its amendment provisions, drawing on the common law, on the right to self-determination and on various international instruments to which Fiji was a signatory.
In this case, like the earlier 2001 Chandrika Prasad case, the Fiji courts delivered an appropriate and reasonable judgment opening a path for democratic deliberation. The 2001 Chandrika Prasad judgment found that the interim government established in the aftermath of the May 2000 coup was unlawful. The case critically rested on an “efficacy test” centring on whether there was an alternative government-in-waiting and whether there existed “popular acceptance and support as distinct from tacit submission to coercion or fear of force”. As evidence of the former, the court relied on affidavits from the ousted prime minister Mahendra Chaudhry and his colleagues. As evidence of the latter, it relied on the submissions of various NGOs. Yet, after that judgment was issued, finding the Qarase interim government illegal, it quickly became obvious that there was no realistic alternative government-in-waiting.
The Chandrika Prasad judgment left the President with three options; restore the ousted Chaudhry-led government, order parliament to sit to choose a new government or call fresh elections. Aware of the precariousness of his own position, Chaudhry himself advised a dissolution knowing that a rebellion was brewing in his own party (a split that later emerged in the shape of Dr Tupeni Baba’s breakaway New Labour Unity Party). After the tumultuous events of May-July 2000, it was in conceivable that Chaudhry could return as prime minister. His coalition had collapsed. The small indigenous-backed parties that had supported him disintegrated.
It is never easy to distinguish “popular support” from “tacit submission”. These are judgments that neither courts nor civil society organisations nor political scientists are well-equipped to make. The judgments that would have existed on this issue, in Fiji society mid-2001, would have been very different depending largely on communal background. Nevertheless, an election was the best outcome in the difficult circumstances of March/April 2001, even though it proved to be one of the most polarised contests in Fiji’s political history.
In the August 2025 Supreme Court judgment, the Haynes “efficacy test” used in the Chandrika Prasad case is cited as itself being application of a “rule of recognition”. Such a rule, in HLA Hart’s thinking, is a “rule about rules”. For England, Hart wrote that the ultimate rule is that law is what is enacted by the King-in-parliament, whereas for the United States he found the legislature subordinate to “an ultimate rule of recognition and, in the clauses of its constitution, a supreme criterion of validity”. If so, it is difficult to see how a similar or comparable rule of recognition could allow non-recognition of certain parts of a constitution. Hart has his critics, and here is not the place to traverse those complex debates. The Fiji Supreme Court was quite right, I believe, to strike down those draconian amendment provisions on the grounds that they were intended to prohibit constitutional change, but how does one truly read down constitutional amendment requirements to a simple majority in a referendum relying on the common law of Fiji? Hart’s “rule of recognition”, which he described as existing “only as a complex, but normally concordant, practice of the courts, officials, and private persons”, has a self-referential quality. Leaving aside the worrying issues of precedent, the value of courts deliberating on such issues was no more and no less than that of having a seemingly neutral third party, publicly perceived to be standing above the conflicts that have plagued Fiji since independence, reach a decision. By opening up the constitution to democratic deliberation, judges have done their job.
Conclusion
Were the PNG courts wise to have showdowns with the legislature in December 2011 and May 2012 upholding constitutional provisions that could not be appropriately satisfied in the peculiar circumstances of mid-2011? The tired old cliché is “justice delayed is justice denied”, but in the 2012 PNG case delay would have allowed political processes to resolve a complex dilemma that could not be addressed adequately within the 1975 Constitution. After all, that is what happened anyway, but unfortunately in defiance of the courts. Were the Samoan judges right in 2020 to publicly reject the HRPP government’s plans to reconfigure the legal system? Did this conflict make their position difficult later when called upon to rule on the unconstitutionality of the Head of State’s actions and inactions. Could the Fiji courts adequately conduct an “efficacy test” for the interim government of 2001? Can we talk of a “rule of recognition” that emerges from the common law of Fiji that can be used to validate the 2013 Constitution and to invalidate certain parts of that constitution? In a country like Fiji, where there is so little cross-communal agreement on fundamental foundational issues, we should question whether there truly exists anything that resembles a “social contract” or a Kelsenian grundnorm or a “rule of recognition”. The 1997 Constitution’s answer to that dilemma was achievement-oriented: power-sharing in government was to create something that did not as yet exist, but that is no longer supported by those parties which have historically drawn their support from the Fiji Indian community. As their submissions to the 2025 Supreme Court show, those parties now prefer integration in a liberal state (under the 2013 constitution) to communal protections (under the 1997 constitution). That change may itself be a response to dwindling numbers. Yet it would be absurd to call for resurrection of mandatory power sharing when the minority community itself does not demand this.
What courts in the Pacific have done, in the three country cases surveyed in this talk, has been to reach verdicts that open paths to democratic deliberation and close off efforts by those in power to shut these down. Constitutional democracy has not failed, and Martin Loughlin ropes much of that into what he calls ‘constitutionalism’. There has been no emerging “juristocracy” that has stifled democracy through a self-interested alliance between judges and political elites. PNG governments have been repeatedly prevented from evading legislative accountability by using the pretext of “party strengthening” laws. Samoa’s outgoing government was prohibited from using its extraordinary stranglehold over the state to block a democratic transition in April-July 2021. And the Fiji courts in the Chandrika Prasad and CCF cases opened the way to resolve matters by a fresh election in December 2001 and, in the August 2025 Supreme Court judgment, by allowing constitutional amendment through a simple majority in a referendum. In those country cases, courts have been servants of, rather than impediments to, democracy.
