How was the Doctrine of Necessity applied by the Fijian Courts in the constitutional case of Qarase v. Bainimarama in 2009?

Abstract

The concept of doctrine of necessity as a constitutional defence has been applied in many jurisdictions from time immemorial including the English and the American revolutions where the doctrine was adopted by the courts to give legitimacy to the new order which replaced the old legal order and gave the usurper the de jure status ultimately acquiring legitimacy of the new legal order. In this article it is proposed to examine the doctrine of necessity how this defence was considered as a defence to an action commenced by the former FIjian Prime Minister Lasania Qarase who claimed that the Commander of the Fijian MIlitary Force did not have the constitutional power to dismiss him and his Cabinet Ministers on 5 December 2006 when the Republic was engulfed in a cosntitutional crisis. The case was filed as Qarase v Bainimarama [2009]. The trial judge held that the dismissal was justified on the basis of the defence of prerogative power. The plaintiffs appealed to the Fiji Court of Appeal which held that the dismissal was unconstitutional. The central theme of this paper is to demonstrate that the Fiji Court of Appeal failed to make the relevant distinction between the de jure state as compared to administration where the President of Fiji had invoked executive rule and appointed Interim ministers on 5 January 2007 to manage the government departments until the next elections. After the dismissal the former Prime Minister filed his claim seeking several orders and declarations including orders for reinstatement. In the claim before the High Court the former Prime MInister claimed that the President did not have the constitutional power to dismiss him or to ratify the conduct of the Commander or to appoint ineterim Ministers to administer the nation until the next election. This paper examines the basis on which the courts are required to apply existing jurisprudence and to analyse evidence of fact in constitutional matters which should be carefully applied when considering that the outcome affects not only the parties but also the citizens of the nation as a whole. This paper deals with only one of the several defences namely the defence based on the doctrine of necessity which were submitted by the defendants but were held invalid by the Fiji Court of Appeal.