Lessons to learn from the US Supreme Court’s historical Guantanamo Bay ruling.

Last Thursday the US Supreme Court handed down a divided (5-4) historical ruling concerning terrorist detainees at Guantanamo Bay, that the detainees ‘have the constitutional privilege of habeas corpus’, but more importantly ‘the laws of the Constitution are designed to survive, and remain in force, in extraordinary times’, dealing a major blow to the Bush Administration’s questionable tough stance on terrorism.

 

Fiji’s constitutional history is very short in comparison to the US. After the Rabuka coup in 1987, Rabuka abrogated the 1970 Constitution, declared Fiji a Republic and introduced the 1990 Constitution. The Reeves Commission reviewed the 1990 Constitution, resulting in the Constitution Amended Act 1997, which remains the supreme and extant law in Fiji tody.

 

Bainimarama after assuming Executive Authority from the late Tui Nayau Ratu Mara during the Speight coup in 2000 sought to revoke the 1997 Constitution, but was rebuffed by then Justice Gates in Chandrika Prasad as ‘not within the doctrine of necessity and such revocation was unconstitutional and with no effect. The Constitution is the supreme and extant law of Fiji today.’

 

President Iloilo and the interim government have maintained since the removal of the Qarase Government in December 2006, that the 1997 Constitution remains the supreme and extant law in Fiji and all reforms will be in compliance of the same.

 

Its has been over 3 months since Qarase’s Constitutional case was heard before Acting Chief Justice Gates and Justices Pathick and Byrnes and judgement is still on Notice. This case is more important than previous Constitutional cases and the courts composition of 3 Justices instead of a single Judge bears testimony of how seriously the judiciary viewed Qarase’s case.

 

The Court in previous coups has attracted severe criticism both from within and without. Now it is provided with an opportunity to show to the world its tenacity to be independent and will to uphold its sacred judicial duty.

 

On this occasion, its decision will also be closely scrutinised because of other outstanding issues, one surrounding the legality over the appointment of Acting Chief Justice Gates and the legality over the suspension of Chief Justice Fatiaki.

 

Fiji’s judiciary in the past have stood up to the plate when required and the latest US Supreme Court ruling should fan the fire in their belly to stand up for justice, the rule of law and not shirk away from its Constitutional duties.

 

Acting CJ Gates’ himself eloquently summed up the Court’s proper role in a Constitutional case, such as in Chandrika Prasad when His Lordship quoted with emphasis and approval from Makenete, which I respectively submit, it is duty bound to apply to Qarase’s case as well:

“The Courts become the pivot on which the constitutional arrangements of the country turn, for the Bench can and must determine the limits of the authority both of the executive and of the Legislature. The consequence follows that the Bench of Judges is the guardian of the constitution…

Judges appointed to office under a written constitution, which provides certain fundamental laws and restricts the manner in which those laws can be altered, must not allow rights under that constitution to be violated. This is a lasting duty for so long as they hold office, whether the violation be by peaceful nor revolutionary means. If, as in South Africa, the Courts were obliged to stand resolutely in the way of what might be termed a legitimate attempt to override the constitution, a fortiori must a court stand in the way of a blatantly illegal attempt to tear up a constitution. If to do this is to be characterized as counter-revolutionary, surely an acquiescence in illegality must equally be revolutionary. Nothing can encourage instability more than for any revolutionary movement to know that, if it succeeds in snatching power, it will be entitled ipso facto to the complete support of the pre-existing judiciary in their judicial capacity. It may be a vain hope that the judgment of a court will deter a usurper, or have the effect of restoring legality, but for a court to be deterred by fear of failure is merely to acquiesce in illegality. It may be that the court’s mere presence exercises some check on a usurper who prefers to avoid a confrontation with it. (Emphasis added)

I am in full agreement with these views and in particular with the warning that a court ought not to shirk its constitutional duty because it fears that its orders may not be executed by the usurper.”

 

Tui Savu.

Lawyer.

Townsville. QLD

Australia.

10 Responses to “Lessons to learn from the US Supreme Court’s historical Guantanamo Bay ruling.”

  1. NobleBannerBlue Says:

    Excellent judgment – lets hope the Fiji Judges take heed!

  2. NobleBannerBlue Says:

    i.e. that Gates follows his own decision!

  3. EnufDictatorship Says:

    Lessons are definitely meant to learned from various countries’ examples that have been mooted in this blog.

    WE KNOW THAT, don’t we?

    But the million dollar question will always be: DO THESE ILLEGALS KNOW IT? That is from Voreqe to Mahendra to these judges and to anyone associated with them.

    If we have to go by their history that it is a big NAUGHT! But like any optimist, we like to hope for the best for the sake of our children and their future.

    But then again, we do question, why the delay? As stated by Tui, this is one of the most pivotal cases in our fragile history, so, the delay doesn’t assist our legal systems image at all, especially at this point.

  4. Ablaze Says:

    Thanks Tui & Too Right EnufDictatorship!

  5. Mark Manning Says:

    There’s a hole in my bucket dear liza !
    google it !

  6. natewaprince Says:

    MM,theirs a hole in Gate’s buttock,ogle it.

  7. natewaprince Says:

    There can only be one outcome in LQ’a case,and it has to be in his favour.The pig realises this and so do the judges.But by giving their verdict means admitting to their own illegality which they cannot allow to happen.

    Their only option is to delay judgement untill after elections and hope for the best.

  8. Budhau Says:

    my kora is milamilanchi, need to teve cum erection day.

  9. ex Fiji Tourist Says:

    Remember a while back, some ex-judge did a sham enquiry into the magistrate’s court?

    The poor old fool couldn’t see all the illegally appointed magistrates but spent his time worrying about some magistrates who took some time to make decisions.

    Remember how the illegal and incompetent, hairyarse, jumped on the band wagon and said how dreadful they were for not making decisions quickly enough?

    hairyarse even went further and illegally sacked one of them.

    Then he has the hide to turn around and dare to criticize the legally governing party for asking about a decision on the high court case regarding the illegality of chaudhry’s coup d’etat.

    If the illegal gates had any balls he could have made a decision on the spot.

    “YES!. chaudhry’s junta is illegal and they should go straight to jail. Do not pay $200.”

  10. george of sydney Says:

    I believe the the 3 judges have already made the decision are just waiting for the right time to release it. Maybe they are worried that if the decision is against the Interim Government, Frank might have no other choice but to abrogate the constitution and becomes the DICTATOR himself. The three Justice might have to start looking for employment elsewhere or if any is an expatriate, then he might have to start packing.
    Let hope and pray that the decision they make will be within the confine of the constitution so that everybody will learn that no one including Frank and the President are above the law of the land (constitution).

    I just want to ask Tui Savu to clarify something which was not clear to me.
    When a friend and a former politician was in Sydney last year , I asked while we were having grog as to why cant Frank just abrogate the constitution, make himself the supreme authority, make a new constitution to suit the objective of the takeover then after doing all that, follow the process of returning the country back to a democratic state through electoral process. The reason I suggest this is to take the pressure of the President as he is old and sick and the whole world is looking up to him as the pillar of justice of law and order and the protector of the ultimate rule of law which is the constitution. The former Politicians answer was that the case of Chandrika Prasad if used a precedent will disallow any overthrow of an elected government and the abrogation of the constitution legal. He told me that the constitution can only be removed abrogated is if Frank make himself King then abrogate the constitution.
    All this legal technicalities amazes.
    The 2 question I would like to ask Tui Savu is : –
    1) Why it forming a monarchy is the only way to abrogate the constitution as explained by this former top politician?
    2) The suggestion by Qarase which I felt was the best option would not have put in a lot of misery if accepted by Frank was that if the President recalled Parliament for a special sitting and pass a vote to dissolve parliament. Then the interim government takes us to the next election. As suggested by Qarase, if the democratically elected government is part of the process, the world will ease the pressure on the interim government of which only the ordinary citizen will pay the price. my question is
    ” How legal is Mr Qarase’s suggestion and what is your opinion on that?

    Tui Savu, Thanx for the legal facts you have been providing.

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