Lessons to Learn

Bloggers, following FDN’s post titled ‘Another big lie is coming’ and his referring to Tui Savu’s article, which we posted on 16/06/08. It may have been overlooked because of the other articles being posted; so here it is again for your convenience. It appeared in the Opinion Section of today’s Daily Post in Fiji.

 

BTW, a Blogger has brought it to our attention, that since yesterday, we’ve had over 2,000 hits!!!

 

Keep blogging ragone!!!

 

SV Team.

 

18-Jun-2008

ON Thursday June 12, 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 today.

Commodore Frank Bainimarama after assuming Executive Authority from the late Tui Nayau, Ratu Sir Kamisese 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 Josefa Iloilo and the interim Government have maintained since the removal of the Laisenia 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 three months since Qarase’s Constitutional case was heard before Acting Chief Justice Gates and Justices Pathik 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 Daniel 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 characterised as counter-revolutionary, surely 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.

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 is a frequent contributor writing editorial letters to the media. He is a lawyer and resides in Townsville, Queensland, Australia.

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14 Responses to “Lessons to Learn”

  1. hopefiji Says:

    Interesting piece, however what Tui had neglected to mention is that is pretty hard for Gates, Brynes and Pathik to rule in favour of Qarase and Fatiyaki, given that both Brynes and Pathik have already ruled intheir judgements against Heffernan that they have been legally appointed within the provisions of the 1997 constitution. The Heffernan decision has already prempted the Fatiyaki decision because her case against thoes two judges was fundimentally that the two judges had no right to hear her matter because they were unlawfully appointed..the manner and the people that recommended the appointment are unconstitutional.

    So therefore if those two junta jundges , including Gates have already on record ruled that the interim regimes appointment of them are legal, what does it say about how they will rule on the constitutionality of the regime and its actions so far.

  2. Dauvavana Says:

    even by these two illegal judges just accepting the appointment in the first place is an indication of their views that their appointment is legal, eh???

  3. Save the Sheep Says:

    Correct HopeFiji. The meticulous and systematic way in which Fiji’s judiciary has been manipulated and reconstructed to suit the I.G. will become evident when and if the ruling ever sees the light of day.

    We will hear something very interesting I am sure spiced and laced with the appropriate legalistic mumbo jumbo to keep up appearances.

  4. Adi Kaila Says:

    *******ALERT BLOGGERS. FULL MOON TODAY THURSDAY 19.6.08*******

    I’ve observed in the past six months or so that during the full moon period – a couple of days leading up to it, the actual day & a couple of days later that there’s always a lot more inappropriate activity by the ig coupsters – more rhetoric, more of the same bullshit using different phrases to justify whatever they’re desperately trying to prove (?).

    We also get a lot of ig coup sympathisers & apologists posting their venom here on SV during this time.

    I mentioned it a couple of times then last month most of you twigged and we all realised that it brings them out – full blast mai na cavuka from their moon dancing. Oi lei – na levu gona ni moon dancing sa mai lega tu kina na neimami Vanua. Let’s hope their next moon dancing phase will phase them right out to oblivion.

    I’ve always been a keen observer of our cultural ways from a young child. During the tukuni times – man so thrilling and enthralling to listen to those stories late at night then really lamu to go to the toilet or to bed by myself. There used to many meke vula stories – of course I believed every word and had a certain picture in my mind of howthese miscreants looked and avoided the lookalikes like the plague – usually some poor old qase who may have looked a little dishelleved but to my young eyes was the famous Avoro himself out to get someone with his black magic. I mention this because some of those stories now have a ring of truth – all of the rumours about certain people practising this ‘art’ whose families end up suffering untold misery but before the misery were living high off the hog. Some have even managed a cushy job in the USA as ambassador and the son of another is the pretender to the job of PM of Fiji – I’m sure I could name a few more – but …………………………………..let’s ponder and watch what the next week will reveal – what the ig coupsters will say? do?

    Here’s to watching you watching them and exposing them…….

  5. FijiGirl Says:

    Interim PM stresses reforms
    Fiji Times Online – Thursday, June 19, 2008
    ELECTORAL reforms are necessary before elections are held, interim Prime Minister Commodore Voreqe Bainimarama told the visiting European Union Troika yesterday.
    * THE REFORMS ARE NECESSARY FOR MY AGENDA, BUT OBVIOUSLY AGAINST THE SPIRIT OF DEMOCRACY

    The high level delegation arrived in Fiji on Tuesday to examine the situation here and focus on the achievements of the interim Government in relation to its commitments to the European Union.
    * THE ONLY ACHIEVEMENT THE IR IS WORRIED ABOUT IS THEIR ACHIEVEMENT TO SQUEEZE MONEY OUT OF THE EU

    In a statement, Commodore Bainimarama said the political forum to be facilitated by the United Nations and the Commonwealth could be delayed if the stakeholders do not get on board.
    * BECAUSE THE ONLY WAY I CAN GET MY OWN WAY IS THROUGH FORCE RATEHR THAN THROUGH THE WILL OF THE PEOPLE

    He said this delay could set back the reforms as the forum is aimed at getting broad consensus.
    * ‘CONSENSUS’ BEING DEFINED AS EVERYONE AGREEING TO WHAT I WANT

    Commodore Bainimarama said the meeting was productive.
    * WELL, THEY DIDN’T LAUGH AT ME, AT LEAST NOT TO MY FACE

    “Our fulfillments to these commitments can only be realised with constructive dialogue and engagement from all parties in Fiji, the international community, our bilateral and multi-lateral development partners and the Forum,” said Commodore Bainimarama.
    * AND MONEY, LOTS AND LOTS OF MONEY, AS LONG AS I DON’T HAVE TO EARN IT

    “I also informed Troika on the work of the National Council of Building a Better Fiji and its progress in the formulation of the proposed People’s Charter for Change and Progress.”
    * THIS IS THE OTHER SCAM I HAVE GOING TO MAKE THIS APPEAR AS DEMOCRATIC AS POSSIBLE, EVEN THOUGH IT’S A SHAM
    =================

    Does Vore REALLY think the EU is fooled?

    Keep calling and writing in to Debbie Singh at EU Delegation to get them to meet with Mick Beddoes, Richard Naidu and other worthy leaders who will give them the REAL story on what the people of Fiji are thinking.

    God bless Fiji

  6. Budhau Says:

    Tui Savu – cut out the legal crap – Regardless of whose fault it is that the crisis was created or that it is on going, I do not think that a court’s decision is going to resolve this.

    So you want these judges do the right thing. What happened to you not questioning the validity of these appointments? If these judges are sitting illegally, then why should anyone recognize their judgment? Isn’t that what will happen if this case goes against Qarase.

    Here you are calling on the judges to decide the legality of the new regime – the regime that has appointed them – illegally. Don’t you think that the factors that affected these judges decisions to take office in the first place, will probably be the same reasons why they would decide that this was a lawful government.

    So Savu – just accept the fact that this coup, like others before it, has created a new legal order. The IG has governed the country since December 2006. This regime has already been judicially recognized as being in complete administrative and legislative control of the country. If the court rules against the IG, it will deny the validity of the acts of this government since December 2006.

    There are governments all over the world that are recognized as lawful – governments that got into power through a military coup. Our courts must take account of this fact – so at what stage the regime in Fiji becomes “lawful”. Go look at Fiji’s coup history – at what point did the previous post coup regimes in Fiji became “lawful”. When the courts recognized the 1990 constitution or the interim Qarase government as a valid.

    The question is not if this will happen – the question is when and how – because the military is not going to hand over power back to Qarase.

    Savu wrote, “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.”

    What if the court declares the Qarase government as the legal government (or should I say de jure). We still have the de facto government of Bainimarama to deal with. The court cannot reinstate the Qarase government – what it will end up doing is forcing the military to abrogate the constitution, most likely sack this court and we would have a military junta running the country for a long time. Is that what you want this court to as its “sacred duty”.

  7. ex Fiji Tourist Says:

    FijiGirl; well written.

    You are absolutely correct in you summing up of the nonsense that came out of bananasinpyjamas orifice.

    The EU people would have had a really good laugh over a few drinks at their hotel last night:-

    “Did you se his eyes?”

    “He can’t even string a sentence together.”

    “We’ll have to find out what this loonie is running from.”

    “We’ll need to find out why he is scared of the people.”

    “No wonder Fiji is going backwards with a fool like that sitting in the PM chair.”

  8. natewaprince Says:

    Sa dua na ka na vakilakila e cakava toka o raboci e baci vosa tiko i cake.

    Aren’t the fruit pickers calling for water from their ”paniwala”???

  9. Jese Waqalekaleka Says:

    @ Budhau,

    be a man and criticise Tui Savu publicly in the Daily Papers in Fiji using your real name for a change. He has to stand up to all the criticism he and his family faces for something he strongly believes in, so why don’t you do the same before pontificating in this blog site.

    I suggest Budhau, if you cannot, then chup raho!

  10. Budhau Says:

    JW – that “be a man” line – As I told you before, this has nothing to do with me being a man or a woman or whatever – it ain’t about me or Tui Savu – I thought you were smarter than that.

    It is the message, not the messenger, dude.

    If you have an issue with what I said – then go ahead an have your say or you “chup raho”

    As for being a man – is this a Fijian Macho thing.

    The bigger issue here is not me “being a man” or not. What you have to worry about is that some your folks might decide to “be a man” and end up doing something stupid.

    Were you also told as a young boy that crying was “un-Fijian” – that you should make others cry – the tough guy, be a man.

    So I should stand up and fight – so to speak – you guys are real macho – and I am not – right? with your rugby, and wars and street fighting and all that.

    Those were “real men” – the ones that started shooting at QEB, and it was very unmanly of FB to get out the back door.

    How about some of you guys, why don’t you “be a man” and take on FB and company – rather than writing in this blog – than we can start the cycle of violence and counter violence – just like real man.

    So JW – I suggest that intelligent people like you – they and contain this machoism – it is not good. I see the subtle threats of violence in here all the time.

    BTW – didn’t I kick Tui Savu’s ass in here regarding the piece he had written – now, that is as far as I go when it comes to kicking ass – real man or not – and JW, I can also kick your ass anytime – in this Blog – not literally, you get my drift – right?

  11. Dauvavana Says:

    Budhau fuck your mother Nuni Pio

    Be man enough to reveal your ID if you want to attack Tui Savu.

    By the way he is a successful lawyer in Australia not like you an Australian Girmitaya earning $18 an hour.

  12. Budhau Says:

    OK Dauvavana – you wanna fuck my mother why the old lady, you that desperate – or is it some macho Fijian thing, trying to yell at me like that. and Whats this facination with oral sex – nuni pio.
    My above pose about some Macho Fijians – I rest my case on that one.

    OK – so Tui Savu is a successful lawyer in Australia – so what has that gotta do with anything – he don’t look like no constitutional law expert on Fiji – and how about the time he was trying to some psycho-analysis on Bainimarama. Is he really a lawyer – the dude could not figure it out what to call himself – go see his past posts – lawyer, solicitor, counsel. BTW – if he really had something of substance to say in here – like the rest of us, he would not have tried to impress folks with his lawyer title – I think the message is sufficient for us to figure out who you are – as in your case Dauvavana – you are complete idiot.

    That 18/hour remark – that was poking fun at you idiots – that you would not leave your 18/hr job in Australia and go back to Fiji to fight for a cause – by posting messages in this blog site you seem justify it to yourself that you have done your share.

  13. Tui Says:

    Budhau reminds me of the behavior of dogs. They bark loudest when in the safe confines of their compound! Get the drift?

  14. Dauvavana Says:

    Budhau can’t read English and he wants to lecture us here.

    Budhau read this very slowly, I am asking you to go and fuck your mother you mother fucker!!

    Is that now clear…….now run along little boy and do as you are told you Nuni Pio

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