Political scientist Jon Fraenkel highlights the challenging position Fiji’s courts find themselves in when asked to adjudicate on constitutions and governments emerging from coups. He points out the recurring dilemma faced by judges as they grapple with the tension between legal principles and the political realities of unconstitutional takeovers.
Fraenkel reflects on the 2000 and 2006 coups, asserting that judicial bodies worldwide struggle to address the implications of such political upheaval. He argues that one of the first concerns for courts is the origin of their own authority. As a result, judges are often reluctant to declare such matters beyond their jurisdiction, despite some legal scholars suggesting that they should abstain from tackling these “meta-legal” political questions.
In 2025, Fiji’s Supreme Court was presented with a significant challenge regarding the validity of the 2013 Constitution, enacted through decree following the 2006 coup and replacing the abrogated 1997 charter. The amendment requirements of the 2013 document—demanding 75 percent approval from registered voters in a referendum—rendered constitutional changes nearly unfeasible.
Faced with this constitutional conundrum, the judges navigated a complex situation, likening their predicament to the mythological sea monsters Scylla and Charybdis. They had to choose between acknowledging a constitution imposed without public consent or dismissing its legality, which would contradict their own authority.
The resolution involved selectively recognizing the constitution while ignoring its inflexible amendment rules, utilizing common law principles and the right to self-determination to carve out a decision space. This pragmatic approach is reminiscent of the landmark 2001 Chandrika Prasad ruling, which emphasized the importance of democratic discourse.
The Prasad case had previously deemed the interim government post-coup unlawful by applying the “efficacy test,” a measure to confirm whether a regime had genuine public support. However, political conditions soon indicated the lack of an alternative governing body ready to step in. Even former Prime Minister Mahendra Chaudhry noted the necessity of dissolving parliament due to internal divisions and the potential for renewed chaos.
While the decision to call new elections was viewed by Fraenkel as the most viable option in a landscape marked by profound social and communal divides, he acknowledges the difficulty in discerning authentic public support from coerced compliance.
Nonetheless, he emphasizes that Fiji’s judiciary has, on several occasions, successfully found a balance that allows democratic processes to endure. The August 2025 Supreme Court ruling once again executed a careful navigation of legality and political pragmatism, reminiscent of the earlier Chandrika Prasad case. This continuous effort reflects a hopeful trajectory toward fostering democratic values within Fiji’s tumultuous political environment.
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