2013 Constitution
Role’ when read with other relevant laws
assignment by the Minister for Defence. It is relevant to consider the meaning of defence of Fiji and maintenance of order.
Meaning of defence and maintenance of order
“Defence” and “maintenance of order” may cover physical, infrastructure, computer, political, economic, ecological, security of energy and natural resources and the people. It is proposed that the overall responsibility over security, defense and wellbeing of section 131(2) of the Constitution is interpreted within the meaning of “defence” and “maintenance of order” contained in Section 3 of the RFMF Act 1949. The RFMF does not have any overarching authority. Within this meaning, the RFMF would offer advice to the Executive, for national security purposes.
The law does not authorise RFMF to give orders to the Executive nor can it change governments.
Section 131(2) is not Doctrine of Necessity manifested
The ballot box is the way to change governments. People assert their will through the ballot box. This is the only method recognised by the 2013 Constitution to change government. The lawfully constituted government rules with the mandate of the people. The Government has the legal right to govern.
The doctrine of necessity is one doctrine that has been used in past military interventions in Fiji.
However, the doctrine is employable only in a crisis. The doctrine has a temporary character and it ceases to apply once the crisis has passed. It is a temporary extraordinary measure to address an extreme situation that is not covered for by the Constitution.
It has been held that “doctrine of necessity enables defectors and usurpers to respond to and deal with sudden and stark crisis in circumstances which had not been provided for in the written Constitution or where the emergency powers machinery in the Constitution were inadequate for the occasion”.
The drafters of section 131(2) couldn’t have meant that the RFMF be empowered to become a usurper of democratic processes and institutions. Section 131(2) is not doctrine of necessity manifested.
A constitution is a “country’s set of most important rules about the structure and powers of government and of the people’s most basic freedoms and rights.” Effectively, the 2013 Constitution sets out the system of government. Where does the RFMF belong in that system of government? The RFMF is a disciplined force established under State Services.
Being established under State Services, the RFMF and the Commander RFMF are subject to the Executive, the Government of the day, through the relevant minister. The RFMF, being a limb of the Executive, must remain just that in absence of express enabling provisions of the RFMF Act 1949.
Separating and balancing powers
Central to the doctrine of separation of powers is the proposition that there are different kinds of public function that ought to be distinguished from each other and ought either to be exercised by different institutions or personnel or somehow “balanced” to prevent an overconcentration of power in the hands of a single person or institution. To interpret that the RFMF has an overconcentration of power would undermine the very Constitution and institutions and the doctrine of separation of power that is being purported to be promoted and protected.
The rule of law demands that the RFMF be limited in its role.
The rule of law
One of Lord Tome Bingham’s (was a senior and eminent Law Lord) sub rules of the rule of law is that ministers and public officers at all levels must exercise the powers conferred on them in good faith, fairly, for the purpose for which the powers were conferred, without exceeding the limits of such powers and not unreasonably.
To interpret section 131(2) literally and on its own would lead to absurdity. By implication the RFMF would have to significantly break the rules of separation of powers and undermine the very doctrine it is trying to protect. It would be undemocratic and unconstitutional.
The effect of enabling or disabling legislation
Enabling pieces of legislation are statutes that set out the detailed structures, frameworks and processes to accomplishing the general principle laid out in the higher law (the higher law being the 2013 Constitution in this case). Hence the RFMF Act 1949 is the enabling and primary legislation that binds the RFMF. It is vital to interpret section 131(2) in the context of the RFMF Act 1949. This said Act qualifies the role of the RFMF.
Conclusion
The RFMF is an extension of the limb of the Executive and is subject to the Executive. The RFMF takes its orders from the Minister for Defence in accordance with laws and regulations that bind them both. To solely rely on section 131(2) of the Constitution may appear plausible. But it is not wise neither is it legally workable nor correct. Therefore the “guardian role” is misplaced.
ANA ROKOMOTI is a lecturer in Law, (former head of Department of Law) at the Fiji National University. The views expressed in this article are the author’s and not necessarily of this newspaper.