A victory for democracy? : an alternative assessment of Republic of Fiji v. Prasad

Response to George Williams, 'Republic of Fiji v Prasad: Introduction' (2001) 2 Melbourne Journal of International Law 144: In his introduction to the Respondent's Brief from Republic of Fiji v Prasad ('Prasad), George Williams contends that the case 'may prove decisive in restoring democracy to the Republic of the Fiji Islands in accordance with the 1997 Constitution. He concludes that Prasad represents 'a legal landmark'. The Court of Appeal of Fiji declared that the military-appointed Interim Government failed to establish that it was the legal government. It ruled that the Constitution Amendment Act 1997 (Fiji Islands) ('1997 Constitution') remained the supreme law of the country and had not been lawfully abrogated by the military commander, Commodore Frank Bainimarama, when he effectively took power on 29 May 2000, ten days after businessman George Speight's seizure of parliment. Williams suggest that, while the Court did not accept all of the respondent's submissions, it did incorporate a 'normative element' into the effectiveness test for the legitimacy of a new regime. He states that '[w]here adopted by other courts, this criterion will make it extremely difficult for a tyrannical regime which violates basic human rights recognised at international law to gain judicial recognition. The judgment in Prasad does not substantiate these contentions. Rather, as I shall argue in this commentary, the Court left the way open for the military's administration to remain in office. Moreover, it rejected the argument that a usurping regime must be judged by its acceptance of international human rights obligations and it declined to require observance of democratic norms. Arguably, the most significant new criterion suggested by the Court was the acceptance of a new regime by the 'international commmunity' which, in this case at least, refers to the stance taken by major Western nations, notably Australia, New Zealand, Britain and the United States.