The Court reached its key findings based upon a reading of the prerogative power of the President. It found that this power, nowhere provided for in the Constitution, enabled the President to commit acts that would otherwise have been unlawful. This runs counter to normal understandings of the power in other Commonwealth and former Commonwealth nations, and indeed produces a view of the power reminiscent of the authority held by the English monarchs of centuries past. It is a view that is fundamentally inconsistent with modern understandings of the prerogative power under a democratic system of government containing constitutional checks and balances.

One of the High Court judges in Qarase v Bainimarama was Acting Chief Justice Gates. During the last coup in 2000, he handed down the first of two decisions in the Prasad litigation that had the effect of overturning the coup attempt and restoring Fiji to constitutional governance. His earlier decision was a landmark in the history of the common law in demonstrating that the rule of law can survive even the effects of a coup. This was the first time anywhere in the world that the leaders of a coup d’etât had voluntarily submitted to the jurisdiction of a domestic court and, having lost the case, gave up power in order to restore a constitution and the democratic system of government created by it.

By contrast, the October 2008 High Court judgment in Qarase v Bainimarama gave legal recognition to an otherwise unlawful usurper. This latest decision is at odds with the most important rule of law principles. It will not only provide encouragement to further coups in Fiji, and indeed elsewhere in the Pacific, but undermine the rule of law by providing unfettered power to the President that places him above the clear provisions of the Fiji Constitution.

George Williams is Anthony Mason Professor of Law and Foundation Director, Gilbert and Tobin Centre of Public Law, Faculty of Law, University of New South Wales. He appeared in the Prasad litigation over 2000 and 2001 in the High Court and Court of Appeal of Fiji and has also appeared in the Supreme Court of Fiji.