1

LW ASas LW308 Tutorial Guide WK 3

LW308 Tutorial Guide Week 3 (in WK 3 folder)

Component Elements of Constitutional Law

Disclaimer – these are some points that were discussed in the tutorials. The answer – guidelines
are not necessarily comprehensive. They function in addition to your own preparation for the
tutorials, participation and written tutorial questions. You need to have these questions prepared
yourselves to fully benefit from the tutorial guides.

Learning Outcomes
Upon successful completion of this Topic students will be able to:

1. Describe the various kinds of laws and practices that can combine to establish the constitutional law of a particular country;

2. Briefly explain the function of the courts in relation to interpretation of the constitution;

3. Identify particular types of constitutional provisions;

4. Explain the way in which a written constitution interacts with other sources of constitutional law, and

5. Analyse judicial decisions to identify specific ways in which constitutional law is influenced by other sources of law.

1. Read the Samoan Court of Appeal case In re the Constitution, A-G v Olomalu [1982] WSCA 1, available
at: http://www.paclii.org/cgi-
bin/sinodisp/ws/cases/WSCA/1982/1.html?stem=&synonyms=&query=olomalu

a) What were the facts leading to the dispute?

Olomalu wished to be electoral candidate but was refused on grounds that name did not appear on
register of Matais so that he did not qualify to be entered on the individual voters’ roll.

b) What constitutional provisions were relevant to the dispute?

Preamble, Artt. 2 (Constitutional supremacy), 13 (political values), 15 (equality), 44 and 15

Constitution Samoa. Generally, Parts III to XII including Executive, Legislature, Judicature, Land titles,
Emergency powers, Const. interpretation.

c) Did the court refer to any other sources of law, outside of the Constitution itself, to aid the
interpretation of those provisions?

Apart from other Constitutional provisions and Constitutional Convention, the Court referred to
common law (Home Affairs v Fisher), statutory law (Electoral Act, ss 16, 19) as well as to the US- and
the New Zealand Constitutions in comparison and to the Universal Declaration on Human Rights, Art 21
right to take part in government directly through freely chosen representatives, right to equal access to
public service of one’s country.

d) Provide a summary of the reasoning provided by the court to support the court’s decision.

1
2
LW ASas LW308 Tutorial Guide WK 3

Ss 16 and 19 validly enacted under Constitution. Supreme Court order as to them being void overturned.
Matai title system somewhat democratic and surely it is established, however at same time there is
doubt whether those not in that system holding effective voice in territorial constituencies, especially
if they do not live in the villages. The court left these questions for Parliament as political not legal
questions.

e) Does Samoa still use the same electoral system? Support your answer with provisions from current
Samoan Constitution and Electoral Act.

From 1990 voting system changed by Electoral Amendment Act introducing universal suffrage.
However, right to stand for elections remains with Matai title holders. So yes, Samoa still uses same
electoral system, ss16 and 19 Electoral Act on which at least some doubt has been cast since the
decision. From 1962 (independence) the electoral system was designed to include and accommodate
the traditional political districts so that the territorial constituencies could align with them. Only Matai
title holders could vote and be candidates in elections to Parliament. The judgment was however clear
not to be a political one, not commenting on the Matai title system as such or as foundation for elections
to Legislative Assembly.

2. Read the Solomon Islands Court of Appeal case Billy Hilly v Pitakaka 1 [1994] SBCA 1, available at:
http://www.paclii.org/cgi-
bin/sinodisp/sb/cases/SBCA/1994/1.html?stem=&synonyms=&query=billy%20hilly

a) What were the facts leading to the dispute?

Dispute between the then PM and Gov.General. PM of the Solomon Islands The Hon Francis Billy Hilly
had a majority of 24 to 23 in the house. He then lost the support of 5 ministers and he reverted to
indefinitely delaying calling Parliament instead of resigning. The Governor General removed him from
office.

b) What constitutional provisions were relevant to the dispute?

Ss31(1), 34, 72(1). Schedule 2.

c) What was the court’s decision? Did the Governor General have the power to remove the Prime
Minister in the circumstances of the case?

In favor of defendant. Governor General had power to remove PM. Court found it not necessary to
discuss the existence, extent of the reserve powers. GG should have not been sued in personal name
but in his office’s name.

3. Read the case Qarase v Bainimarama [2009] FJCA 67, available at:
http://www.paclii.org/cgibin/sinodisp/fj/cases/FJCA/2009/67.html?stem=&synonyms=&query=bainimar
ama

a) What did the court rule in relation to the existence of prerogative powers in Fiji?

All students please note that the question asked you about the 2009 FJCA case, not the 2008 High Court
case.

2
3
LW ASas LW308 Tutorial Guide WK 3

In 2009, the Court, which comprised of three Australian judges, Powell JA, Lloyd JA and Douglas JA,
ruled that prerogative powers do not exist in Fiji as the 1997 Constitution thoroughly delimits powers:

Section 109 of the Fiji Constitution deals expressly with the circumstances in which the President may
dismiss a Prime Minister. It prescribes that the President may not dismiss the Prime Minister unless the
Government fails to get or loses the confidence of the House of Representatives, and the Prime Minister
does not resign or get a dissolution of the Parliament. It also goes on to prescribe in s.109(2) that if the
President dismisses a Prime Minister, the President may, acting in his or her own judgment, appoint a
person as a caretaker Prime Minister to advise a dissolution of the Parliament.

In relation to the appointment or dismissal of a Prime Minister, this and s.98 are the only provisions
that state that the President can exercise his own judgment. In the case of s.98, that judgment is
carefully confined, and in the case of s.109 that judgment is for a very limited purpose.

The question really is whether under the Fiji Constitution the President has a discretion to dismiss a
Prime Minister in circumstances other than those set out in s.109, and appoint another caretaker Prime
Minister to advise a dissolution of Parliament, and appoint an Interim Government, particularly in
circumstances where it is said that an emergency situation has arisen.

In our view, the answer to this question is to be found in s.96(2) which provides: "This Constitution
prescribes the circumstances in which the President may act in his or her own judgment". This express
provision, in our view, makes it clear that under the Fiji Constitution it is not intended that the
President, in the exercise of discretion, dismiss a Prime Minister in circumstances other than those set
out in s.109, and in effect establish an Interim Government.

The Court also confirmed that the doctrine of necessity could not be used to justify a ‘revolutionary
regime.’

Contrast the above with the earlier judgment 9 October 2008: The High Court decision in the Qarase
case. The Court, which was then comprised of Acting Chief Justice Gates, Justice Byrne and Justice
Pathik, ruled that the President, as Head of State, retains prerogative powers ‘to act according to
discretion for the public good, without the prescription of law’.19 These prerogative powers are not
limited by Fiji’s Constitution. In the absence of bad faith exercise of these powers the actions of the
President in exercising them are not subject to judicial review.

The Head of State’s prerogative powers are distinct from the powers that exist under the doctrine of
necessity outlined in Prasad, in that the prerogative powers are a residue of the absolute powers of
“ancient” monarchs and attach to the position. On the other hand, the doctrine of necessity can be used
to justify the actions of others who do not possess the Head of State’s prerogative powers who have
acted for the public good.

Also see in Anita Jowitt, Journal of South Pacific Law 2009, 13(1).

b) What was significance of Fiji transitioning from a constitutional monarchy to a Republic in the court’s
reasoning?

Controversial. The judgment in Qarase v. Bainimarama is viewed by some (ie Abigail Bache, Human
Rights Review 2010 (11) 357) to having provided a legal basis for the 2006 military coup in Fiji and stated

3
4
LW ASas LW308 Tutorial Guide WK 3

that the President was entitled to grant authority to the military to act outside of the powers prescribed
by the written Constitution.

According to the ruling, the Royal Prerogative powers that remained in government following British
rule could be utilised by the President at any time that he considered it necessary. This may or may not
be viewed to go along the idea of a republic (res publica, which should be a public matter) as the
prerogative powers are very strong and resemble the powers of a monarch, albeit here limited to the
emergency.

The nature of prerogative powers, perhaps somewhere between the demarcation of law and politics is
again controversial. Prerogative powers could be viewed to act as residue of Crown power included the
power to preserve the state from civil strife and to act in an emergency to ensure the well-being and
safety of the people. Limitation: Absent bad faith by President, in an emergency situation as accepted
by the plaintiffs, the court cannot inquire which course of action was correct or better suited more
efficacious, wiser or better founded. That would be a political decision courts cannot take.

4. Read the Vanuatu Court of Appeal case Ayamiseba v AG [2006] VUCA 21, available at:
http://www.paclii.org/cgibin/sinodisp/vu/cases/VUCA/2006/21.html?stem=&synonyms=&query=ayami
seba

a) What was the court’s decision regarding the deportation of Mr Andy Ayamiseba?

Court quashed removal order with costs in favor of Ayamiseba. There was no evidence to suggest that
this second inquiry was undertaken at all, and that the exercise of power and the deportation which
followed was unsustainable in law, the deportation order was made without proper compliance with
statute, thus declared null and void.

b) Was their decision based on:

i. The protection of Mr Ayamiseba’s fundamental rights under s5 of the Vanuatu Constitution;

ii. Common law principles of natural justice and fairness; or

iii. Interpretation of the Immigration Act and procedural requirements?

Court’s decision based on Interpretation of Immigration Act and Procedure: Activities of Mr Ayamiseba
were detrimental to national security or public order under s17A(1)(a). Decision based on all factors
above: The case before Bulu J was that the order for removal was unlawful as it was in breach of the s5
of the Vanuatu Constitution and the principles of natural justice and fairness in that, specifically:

a. it was unreasonable,

b. it precluded the claimaint’s constitutional rights,

c. it was oppressive and

d. it was inconsistent with section 17 of the Immigration Act.

5. Read Claire Slatters conference paper titled ‘Protecting sovereignty in Pacific Island states: the role of
parliaments in approving binding trade agreements’. You can download it here
http://www.paclii.org/pcn/publications2.html

4
5
LW ASas LW308 Tutorial Guide WK 3

a) Which countries have constitutional provisions requiring parliamentary approval to enter into trade
treaties?

Only six (6) PACP states have constitutional requirements for parliamentary approval for international
treaties to become binding. The countries are: Vanuatu Art.26, Fiji, s51 of 2013 Constitution, Tonga
Art 39, Palau Art VIII s7, PNG s117, FSM Art IX S2. However, none of these require any public
consultation on the treaties.

b) In your opinion, do you think your own country has sufficient provisions for parliamentary scrutiny of
treaties? Compare your country’s process to those of Australia, NZ or the UK for comparative analysis if
useful.

In view of the above (a), most students answered ‘no’, they did not think that their respective country
had sufficient provisions for parliamentary scrutiny of treaties. This is perhaps correct for many other
jurisdictions outside the USP region as well. This is perhaps correct also in that the level of direct of
scrutiny is low, and that there is mostly indirect scrutiny through the system of democracy / voting. A
way forward may be to strengthen the role of Parliamentary Committees assigned to the task
providing some oversight mechanism, or the inclusion of appointed experts with powers to scrutinize
and to report back to Parliament. It is important that Parliament needs to be well informed or relies
on expert advice before making these significant decisions.