The RFMF and the
A perspective on the constitutional ‘guardian
Absence of clarity is destructive of the rule of law; it is unfair to those who wish to preserve the rule of law: it encourages those who wish to undermine it” Lord Donaldson in Merkur Island Shipping v Laughton (1983) 1 All ER 334, p, 351
FIJI is a constitutional democracy founded on fundamental values, one of them, good governance, including the limitation and separation of powers. The spirit of the doctrine of separation of powers is that power is not concentrated in any one person or institution. Hence, whatever powers and responsibilities are given by the Constitution, these powers and responsibilities are limited. This is the key to understanding the role of the Republic of Fiji Military Forces (RFMF) in Fiji.
Proposition
The RFMF’s self-perceived “guardian role” is not correct in law and neither is it lawful. The rules of statutory interpretation warrants that Section 131(2) of the 2013 Constitution not be read in isolation. Section 131(2) is to be interpreted in the context of the 2013 Constitution as a whole, in particular sections 2 and 3 of the 2013 Constitution and interpreted in conjunction with other existing laws, inclusive of sections 3 and 3 (A) of the RFMF Act 1949. By implication, the RFMF does not have a “guardian role”.
Section 131(2) of the Constitution is not a constitutional approval for the RFMF to intervene in or usurp the 2013 constitutional governmental system or any part thereof. The same 2013 Constitution establishes the RFMF as a disciplined force under State Services. Section 131(2) does not empower the RFMF to act in the place of the Parliament, the Executive nor the Judiciary.
The Executive is made up of the President and Cabinet. The RFMF as part of the State Service is, by implication, an extension of the limb of the Executive. RFMF is subject to the Executive through the relevant minister (Minister for Home Affairs) as per the RFMF Act 1949. The RFMF is subservient to the authority of the minister.
Section 131(2) is not “doctrine of necessity” manifested. Section 131(2) does not expressly provide the RFMF to be the “guardian”. It is a matter of interpretation. The Constitutional three-arm governmental system established by the 2013 Constitution operates without any specific need of assistance from the RFMF. The RFMF is not expressly authorised by section 131(2) to specifically oversee any aspect of it. It is arguable that the overall responsibility provided for in section131 (2) for security, defence and well-being of Fiji and all Fijians is laid out in the context of section 3 and 3A of the RFMF Act 1949. The role is limited to that. The RFMF has not been legally concentrated with lawful power to take action against the Executive. RFMF has no power to invoke because there is no enablement provided for by enabling legislation or provision. It appears that the lack of enablement creates a lacuna in the law. If so, the question then arises whether legislators failed by allowing such a gap? Be that as it may, the functions of the RFMF can still be identified.
What is not the RFMF’s responsibility/role and function?
It is legally correct to state that Fijian legislation does not expressly authorise the Republic of Fiji Military to directly or immediately do any of the following:
1. To be responsible for maintenance for law and order (at least not together; law and order);
2. To preserve peace, to protect of life and property;
3. To prevent and detect crimes,
4. To enforce all laws and regulations with which it is directly charged; and
5. Be entitled for the performance of any such duties to carry arms.
The above functions are directly and lawfully granted to the Fiji Police Force. The Legislature is very clear about that. There is no ambiguity. If the drafters of section 131(2) of the Constitution had meant otherwise, the Police Act 1965 and the RFMF Act 1949 would reflect that. But this has not been the case. The police’s maintenance of order is one function that overlaps with the RFMF’s. That RFMF function, however, is also subject to the minister’s powers. This minister is also responsible for the Police. Section 3(A) of the RFMF Act 1949 empowers the minister to activate the RFMF into essential public services, this is at the minister’s discretion.
Chapters 3, 4 and 5 of the 2013 Constitution establishes the institutions of Executive, Legislature and Judiciary with legally entrenched boundaries that are not intended to be undermined by any overarching
Minister for Home Affairs Pio Tikoduadua inspects a guard of honour during his visit to the Army’s Queen Elizabeth Barracks in Nabua, Suva, on Thursday.
Minister for Home Affairs Pio Tikoduadua is accorded a guard of honour during his visit to the army’s Queen Elizabeth Barracks in Nabua, Suva, on Thursday February 2, 2023. According to the author, the RFMF is subject to the Executive through the relevant minister, the Minister for Home Affairs.
authority such as the RFMF. Therefore, the “guardian role” interpretation may even be in danger of breaching the 2013 Constitution and the Crimes Act 2009.
Lawful functions of the RFMF as per the RFMF Act 1949
Section 3 and 3(A) of the RFMF Act 1949 qualifies the section 131(2) responsibility; The RFMF is charged with the;
1. Defence of Fiji,
2. Maintenance of order and other duties assigned by the minister from
time to time,
3. Become part of essential public service and deployment overseas with the consent of the soldier as per the RFMF Act 1949 as per the relevant minister’s discretion and direction. It is in accordance with the rules of statutory interpretation and in the context of the RFMF Act 1949 that section 131(2) must be construed. It would lead to the correct interpretation of the role of the RFMF in section 131(2). The RFMF can only act subject to law as expressly provided. Matters outside their day-to-day scope need formal
Minister for Home Affairs Pio Tikoduadua arrives at Queen Elizabeth Barracks on Thursday. To Mr Tikoduadua’s right is commander land force Colonel Onisivoro Covunisaqa.