The rule of law

While the acquisition of power may be legitimated by the passage of time, by election, treaty or similar action, the subsequent conduct of a regime must also conform to appropriate standards to maintain that legitimacy. This constitutional principle, which is part of the concept of the rule of law, is based upon the practice of liberal democracies of the Western world.[43] It means that what is done officially must be done in accordance with law.[44] In Europe, where an entrenched constitution is the touchstone for legitimacy of government,[45] there might be a general grant of power to the executive, and a bill of rights to protect the individual.

In the British tradition, and in those countries that derive from it, public authorities must point to a specific authority to act as they do.[46] In some respects, the government in such a system has little more inherent formal authority than do individuals.[47] The State sees itself as the source of both law and power; legality prevails.[48] Thus, the emphasis lies on formal, objective, laws rather than subjective justice. Procedure rather than substance dominates. In Fiji since 1987, there have been some ‘upheavals’, but the courts recognized the re-establishment of constitutionality with the adoption of the 1997 constitution. All subsequent actions by the organs of the State should be in accordance with the Grundnorm thus established. The unilateral action of the military is not consistent with that standard. This gives the courts, not the civil or military servants of the state, the arbitral role.

This is done not merely because the courts operate in a neutral and dispassionate manner, but because the proper application of legal principles requires skill and training. As Sir Edward Coke, Lord Chief Justice of the Court of Common Pleas, said in Prohibitions del Roy, almost 400 years ago:

… causes which concern the life, or inheritance, or goods or fortunes of his subjects, are not to be decided by natural reason, but by artificial reason and judgment of law, which law is an art which requires long study and experience, before that a man can attain to the cognizance of it. The law is the golden met-wand and measure to try the causes of the subjects; and which protected His Majesty in safety and peace.[49]

Neither ministers, nor the president – and certainly not the commander of the RFMF – can unilaterally decide what action is legal and what is illegal.

Much of the legitimacy of a political system derives from the impartiality and objectivity with which it is administered.[50] Thus, the very exercise of authority legitimates that authority.

Dicey defined rule of law to encompass the liberty of the individual, equality before the law, and freedom from arbitrary government.[51] The scope of the concept is however rather fluid. As Joseph observed, it includes such meanings as government according to law; the adjudicative ideal of common law jurisdictions; a minimum of state intervention and administrative power. It also includes the need for fixed and predictable rules of law controlling government action; standards of common decency and fair play in public life; and the ‘fullest possible provision by the community of the conditions that enable the individual to develop into a morally and intellectually responsible person’. It also includes the principles of freedom, equality, and democracy.[52]

Most writers now distance themselves from Dicey, and believe that his ideas of the rule of law should be subject to reappraisal.[53] But the subjugation of the military to the control of the civil government is a principle that has long been established in Commonwealth jurisprudence. To allow – nay, to encourage – the armed forces of a country to assume a political oversight role, is highly dangerous and a retrograde step. It is depressing that a statutory human rights body could advocate such an approach, and a warning to the rest of the Commonwealth. The precise nature of democracy, and ‘majoritarianism’ (used in the report almost as it were something to be avoided) may be negotiable in Fiji, but without adherence to the principle of government according to law, then the country is in danger of declining into lawlessness.

The specious use of legal arguments to justify what is actually a military coup is not helpful, and no statutory body, least of all a human rights commission, ought to give support to such action. If the Commission will not take a stand in favour of the rule of law, then it is up to the legal profession collectively, and its members individually, to do so.

[43] Heuston R. 1964. Essays in Constitutional Law (2nd ed), London, Stevens & Son, pp. 40–41.

[44] Arthur Yates and Co Pty Ltd v Vegetable Seeds Committee (1945) 72 CLR 37 at 66 per Latham CJ.

[45] Hardin, I. and Lewis, N. 1987. The Noble Lie: The British Constitution and the Role of Law, Hutchinson, London, 1987, p 7.

[46] Entick v Carrington (1765) 19 State Tr 1030 per Lord Camden.

[47] Harris, B.V. ‘The ‘Third Source’ of Authority for Government Action’ (1992) 109 Law Quarterly Review 626.

[48] Rushdoony, R.J. 1973. The Institutes of Biblical Law, Presbyterian and Reformed Publishing, San Francisco, p. 61.

[49] (1607) 12 Co Rep 63; K&L 108; 77 ER 1342.

[50] Royal Commission on the Electoral System. 1986. Report of the Royal Commission on the Electoral System ‘Towards a better democracy’, Government Printer, Wellington, p.27.

[51] Introduction to the Study of the Law of the Constitution, Introduction and Appendix by Wade E.C.S. (10th ed) Macmillan, London, 1959.

[52] Joseph, P. 1993. Constitutional and Administrative Law in New Zealand, The Law Book Co, Sydney.

[53] Hardin, I. and Lewis, N. 1987. The Noble Lie: The British Constitution and the Role of Law, Hutchinson, London, p.3.