Did the President of the Republic of Fiji Have the Executive Power to Dismiss Prime Minister Qarase in December 2006?

Abstract

This chapter examines the concept of and the scope of executive power in a constitutional democracy, it examines whether the common law prerogative power continues to exist in a post Colonial government where this power was applied by the Colonial power during Colonial administration. In his wrongful dismissal claim Mr Qarase submitted that the President of Fiji did not have the executive power to dismiss him when he was legitimately elected and appointed Prime Minister. The trial judge held that there was no executive power provided to the President in s 85-87 however, the trial judge held that the dismissal was justified on the defence of prerogative power. The Fiji Court of Appeal claimed that the prerogative power did not exist in the Republic after the Colony adopted constitutional government. Moreover the Court claimed that there was executive power in the above statute, however, the Court conceded that it required interpretation to determine whether this power was available to the President during the constitutional conflict in 2006 but the Court did not proceed to give interpretation of this power.Historically Fiji was ceded to Britain in 1874 when the Monarch applied absolute power in the administration of the Colony which also included prerogative power. After the Monarch surrendered the legislative power and the control of the judiciary to the Parliament in Britain in 1701 the Monarch retained the residue of power in England described as the prerogative power. But in the British Colonies the Monarch applied absolute power which included the prerogative power. This power was applied in all the British Colonies, including Australia, India and the United States and Fiji.In 1970 the British Government granted the Colony of Fiji constitutional government when the framers incorporated undefined executive power to the Governor General. In 1997 the name of the executive was changed to the President of Fiji, however, there was no reference to the prerogative power in that constitution. The executive power granted to the President in s 85-87 and 194(7) was undefined similar to the undefined executive power which existed in the Colony immediately before adopting constitutional government. The question the court was required to examine was whether the statutory executive power existed independently or it also included prerogative power? The Court was also required to investigate the manner in which an existing prerogative power in a British Colony could be varied or denied to the executive?This paper examines the limits and the scope of two different forms of executive power the prerogative power and the statutory power codified in the constitution. It further investigates whether the framers of the 1997 Fijian constitution intended to include the prerogative power within the meaning of executive power? In order to investigate the scope and the limits of executive power it is proposed to examine some of the judicial writing as well as court decisions and what some of the legal theorists have suggested what this power means and the circumstances when it could be justly applied.Finally I will demonstrate that the President of Fiji in 2006 had the valid executive power the first was the prerogative power and the second power was the undefined statutory power which entitled the President to apply this power in matters where the legislature has left a gap in statue or in matters of national security.