Supreme Court of Fiji has drawn on international judicial precedent in explaining its recognition of the 2013 Constitution, saying courts around the world have faced similar dilemmas in the aftermath of coups, revolutions, and other unconstitutional actions.
In its advisory opinion released last Friday, the Court cited a range of global examples where courts had to decide how to respond to governments that rose to power outside of democratic or legal processes.
“Courts in many jurisdictions around the world have had to deal in various ways with the practical consequences of revolutions and coups,” the Court noted.
“In responding to such cases, courts have sometimes given effect to new governmental or legal orders by recognising them as legally effective on the ground that they become integrated into the life of the country and have been broadly accepted by the people.”
The Court said recognition may stem from public acceptance or even necessity.
“Necessity may arise in relation to the routine business of the state, such as recognising marriages, implementing commercial transactions, and undertaking ordinary criminal prosecutions.”
Chief Justice Salesi Temo and his fellow judges emphasised that courts’ responses to such situations lie on a continuum, which was from full recognition of a usurping government to limited recognition of only specific actions taken under it.
“The techniques used by the courts in these diverse circumstances have included processes of recognition or non-recognition, requiring them to consider whether the necessity of a challenged measure warrants its recognition as legally effective.”
In Fiji’s case, the Court acknowledged that while the 1997 Constitution was not lawfully abrogated, the 2013 Constitution has, over time, become entrenched through broad acceptance and functional efficacy.
“Many laws have been made and administrative actions undertaken under the new legal order which indicate that it works,” the Court said.
“In such a case, it is likely that people affected by such laws and administrative actions have organised their affairs in reliance upon their validity.”
The judges concluded that refusing to recognise the 2013 Constitution at this point could cause serious disruption.
“Efficacy has generated a situation where refusal to recognise the new legal order would lead to great inconvenience,” the Court said.