The Fijian Coup Cases - The Constitution, Reserve Powers and the Doctrine of Necessity

Australian Law Journal, Vol. 83, No. 5, pp. 319-330, 2009

Sydney Law School Research Paper No. 09/26

18 Pages Posted: 8 May 2009

See all articles by Anne Twomey

Anne Twomey

The University of Sydney Law School

Date Written: May 5, 2009

Abstract

If a coup d'état, of necessity, overturns the rule of law, then it is both unusual and potentially self-defeating for a court to rule on its legality. That is why cases on coups are both rare and the object of fascination. How does a court of a country that has been subject to a coup d'état accommodate the strict application of the rule of law with recognition of the reality of a new governing regime and the serious risk to public safety that might flow from its judgment? To what extent does the 'doctrine of necessity' justify extra-constitutional action? This article discusses how the Fijian courts have dealt with these dilemmas.

Keywords: coup d'état, reserve powers, doctrine of necessity, Constitution, extra-constitutional action, democracy, rule of law, military regimes, elections, dissolution of Parliament, dismissal of Prime Minister

JEL Classification: K10, K30

Suggested Citation

Twomey, Anne, The Fijian Coup Cases - The Constitution, Reserve Powers and the Doctrine of Necessity (May 5, 2009). Australian Law Journal, Vol. 83, No. 5, pp. 319-330, 2009; Sydney Law School Research Paper No. 09/26. Available at SSRN: https://ssrn.com/abstract=1399803

Anne Twomey (Contact Author)

The University of Sydney Law School ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia

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