Monday, October 08, 2007

Fiji President's Power


By Cheryl Saunders

I understand that it has been argued that the President of Fiji may dismiss the Prime Minister in circumstances in which the Prime Minister has lost the confidence of the House of Representatives. I further understand that it has been suggested that the dismissal of the Australian Prime Minister in 1975 provides a relevant precedent for this view.

Both propositions certainly are incorrect, for the following reasons:

1. The Constitution of Fiji is specific about the discretionary powers of the President generally and in relation to the dismissal of the Prime Minister in particular.

In this regard, it is consistent with the trend and style in modern Constitutions elsewhere. The relevant provisions are as follows:
Section 96(2) makes it clear that the Constitution itself sets out the circumstances in which the President may act in his own judgment; ie without the advice of the government.
Section 97 states the governing principle that Governments must have the confidence of the House of Representatives.
Section 108 sets out the circumstances in which the President may dismiss a Prime Minister. In essence, these circumstances refer to a Prime Minister who has lost the confidence of the House. Loss of confidence refers to defeat at an election or on the floor of the House of Representatives, after a vote (section 107).
Section 109 specifically provides that the President may not dismiss a Prime Minister unless the Prime Minister loses the confidence of the House of Representatives. The power of the President to appoint a caretaker’ government under section 109(2) depends on his power to dismiss the existing Prime Minister.

By contrast, the Australian Constitution says nothing about the way in which the powers of the Governor-General must be exercised. As a matter of law, it confers very extensive powers on the Governor-General, leaving the manner of their exercise to unwritten convention. The relevant section of the Australian Constitution, section 64 provides in essence that Ministers ‘hold office during the pleasure of the Governor-General’. Clearly this leaves much room for argument about the scope and effect of convention. There is no such provision in the Constitution of Fiji, and the situation is not comparable.

2. There is another reason why the Australian precedent is not relevant.

In 1975, the Governor-General dismissed the Prime Minister in circumstances where the
Prime Minister was unable to secure supply through the Upper House of the Australian Parliament, the Senate. The principle applied by the Governor-General was that the Prime Minister must be able to secure supply from the Parliament. This formulation extended the traditional notion that the Government depends for its continuation in office on the confidence of the House of Representatives. Nevertheless, the requirement for the Parliament to approve supply is familiar enough. Clearly it is entirely different to the situation that presently prevails in Fiji.

* Cheryl Saunders is a Professor of Law and Director of the Centre for Comparative Constitutional Studies at the University of Melbourne.

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