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

Yadra bloggers, this is another letter we have selected from our achieves which we believe is relevant to Gate’s decision. It is interesting what Tui Savu was hoping against, illegal Gates, Byrnes & Pathick have done. Your days are numbered Gates. Well done Vilise Nadaku for your courage and hopefully this will infuse hope into the people of Fiji. Remember bloggers, what Gates and his cronies have done have not only hardened our resolve, but Oz, NZ & the US continue with their travel bans, which means your judgement was fuck all! Blog on ragone!

11th October 2008

 

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.

 

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

  1. Save the Sheep Says:

    Tui is brilliant as usual.

    The Judiciary in Fiji has once and for all demonstrated its degree of compromise to the Illegal Government of Fiji. For this we thank you Gates Pathik and Byrne.

    It is you that will have to rest with the truth that you have failed miserably in your fundamental mission to uphold the rule of law and enforce the basic tenants of Justice.

    To Aiyaz Khaiyum, my your smug face continue to show the world what an insincere ASS you have become…. Now you threaten all who criticise this decision with Contempt… Well then I guess we are all guilty of contempt for you and your legal system..

    So Sue Me….

  2. Keep The Faith Says:

    Tim is this the Hodge opinion you were talking about?

    I’m sorry but Hodge is way off the mark here!!! The judiciary does NOT dictate how and by who a country should be governed by — that’s a job for the people. The judiciary’s primary role is to uphold the constitution as premier guardians of the supreme law of the land and INTERPRET and APPLY the Law.

    Interesting that The Shyster was also party to this case as Friend of the Court — what a royal party it must have been for all these coupsters!

    There’s a new study into the NZ Judiciary which warns that in Aotearoa “Judges risk creating “dog-law” by their enthusiastic and unregulated use of overseas precedents on rights and freedoms”

    “Terming it “rights-based internationalism” it says High Court, Court of Appeal and Supreme Court justices could be creating “vague and indeterminate law”.

    Michael Field has this story on http://www.stuff.co.nz/stuff/4701402a12855.html

    ================

    World must recognise Fiji coup: Expert
    11/10/2008
    A New-Zealand based Constitutional law expert says countries opposed to Fiji’s interim Government can now be expected to recognise it as a legitimate administration.

    Professor Bill Hodge from Auckland University made the comment to Radio New Zealand International in the wake of the High Court ruling in the case brought by deposed Prime Minister Laisenia Qarase against the President and interim Government.

    “Legal systems, international comity – international law, does recognise that extraordinary acts take place,” Professor Hodge said.

    “Some of them may have the appearance of illegality but they can, over time, be recognised and the highest court in the land in Fiji has done so.

    “I would think New Zealand, the United States, UK, will all come around and must come around to recognise a regime in Fiji.”

    Interim Attorney General, Aiyaz Sayed-Khaiyum, has called for co-operation and support for the interim regime’s election plans now that the 2006 military coup has been declared legal.

    Three judges threw out the challenge by the ousted Prime Minister, Laisenia Qarase, who described the ruling as a miscarriage of justice.

    Fijilive

  3. IslandBoy Says:

    Is there no recognition by the courts of what the majority of the people think and feel when there is no Parliamentary representation?

    If we took active part in peaceful civil disobedience could we use the same ruling that Gates handed down to get away with our actions?

  4. Mark Manning Says:

    How can any right minded individual be expected to honour the ruling by 3 Judges , illegally appointed in the 1st. place , by an illegal regime . Had the Judges declared Frank guilty or treason and his coup illegal , then that would have put themselves in danger of arrest .
    Another point is this , the ruling , already flawed for the reason mentioned , relies on the presidents input , yet makes no mention of his mental capacity to make a determination of any kind , in the 1st. place !
    In other words , the regime is guilty of treason as are it’s supporters . The President is too ill to make any decisions at all and therefore unable to make any sound declaration which could remotely be considered legal or rational. The Judges making the finding in the High Court , are themselves guilty of treason by accepting illegal appointments from an illegal regime , therefore , their Judgement , is null and void .

  5. Mark Manning Says:

    Okay , so we’ve waited for the Court to decide , we’ve waited for the soldiers to lay down their arms and withdraw support for Frank and Co. we’ve waited for the International community to act , we’ve waited for that brave soul Tui to roadblock the highway , now what are we waiting for ?
    We shouldn’t test the lord any longer , you can take away a man’s house , wife , car , belongings , freedom , money , property and children and family , but you can’t take away his dignity .
    Frank and his soldiers have declared war on the Fijian population , well so be it !
    He who lives by the sword shall die by the sword .
    Fijians have lost everything now , but do they have the dignity to stand up to these cowards despite this stupid Court ruling , made by 3 regime appointed judges by the way ?

  6. Mark Manning Says:

    By the way guys , I had a great day at Belmore Park in Sydney today at the Fiji Day celebrations .
    I’d like to say one thing , it’s no good having your land , if you don’t have your freedom as well !
    I’d rather have my freedom and no land , in fact , that’s my situation at the moment and I’m happy , what about you ?

  7. Ablaze Says:

    Hi Mark at the moment our main concern is the safety on Vilisi Nakuka (Tui).

    Please read the next posting which is the Gates one.

  8. Ablaze Says:

    Too tired and can’t think I meant posting before this one.

  9. Mark Manning Says:

    hi ablaze , get some sleep my friend , i will pray for tui’s safety tonight .

  10. FijiGirl Says:

    The next major case that G8s has to decide on is the case of the REAL Chief Justice, Daniel Fatiaki who has been at home on full pay for all this time while G8s swans around fancying himself and playing lapdog to Chodo and Vore.

    Wonder how he’s going to try and wriggle out of that one?
    Vinaka Vilisi Nakuka – Tabu soro.
    God bless Fiji

  11. tim Says:

    @ KtF – yes that’s the Hodge. He seems to be losing the plot sometimes as he approaches his dotage.

  12. tim Says:

    Actually KtF, sometimes it becomes clear that some of these pundits rely on the opinions of their mates rather than the reality ‘on the ground’ – they kind of feed of each other – a bit like we see during election time and on Fox News where political commentators are used as experts to analyse the comments and predictions of other political commentators. Hodge is falling into that trap but I guess its the thing to do when you’re not actually in anyway expert on the situation in Fiji and you make certain assumptions as a starting point (such as the legitimacy and impartiality of the judiciary).
    Its a bit like Lucy Hockings said recently on the BBC: Using the ideas of one is called plagiarism. Using the ideas of a few (colleagues) is called research!

  13. tim Says:

    Hodge has surprised me – he has usually been fairly sensible in the way he balances the tensions between principle and pragmatism. Unfortunately in this case the elastic in his knickers are caught on the wrong hook.

  14. Ablaze Says:

    Anyone know how Vilisi (Tui) is doing? Did he remain at the Camp last night? I hope he is OK!

    Unbelievable how one, Fiji’s AG can speak so loudly and so confidently when you have the “guns” on your side.

    “Contempt of Court My Arse” Contempt of Court in Bush Lawyers Paradise!

    This is what I picked up from Fijilive – Rubbish like their farter charter!

    ——————————————————————————–
    Qarase comments ‘border on contempt’
    10/10/2008
    ——————————————————————————–

    Ousted Prime Minister Laisenia Qarase is making comments bordering on contempt of court, says Attorney-General Aiyaz Sayed-Khaiyum.

    Sayed-Khaiyum said media companies which carry such comments from Qarase’s comments could also be liable.

    He said the court had already handed down a decision in a landmark case, which was in the best interests of Fiji and people should abide by it.

    Qarase said yesterday that the court decision resulted in his lack of faith in the judiciary.

    To this Sayed-Khaiyum said that Qarase was making malicious statements because he had no evidence that actually showed that the State, the Prime Minister or the President interfered with the judiciary.

    “As the Attorney-General of Fiji, I have a duty to protect the independence of the courts and I will not stand back to allow public confidence in the administration of justice to be undermined by people like Qarase,” he said.

    “If he (Qarase) is unhappy with the court decision, his remedy is to appeal against the decision to a higher court and not to insult the judges or the integrity of the judiciary.”

    Sayed-Khaiyum said the next step was for everyone to come together and work as one hoping to take the nation forward.

    He has not ruled out the possibility of pursuing contempt of court charges against Qarase if the deposed PM doesn’t stop making public statements which are malicious and in contempt of court.

    Sayed-Khaiyum has warned media companies to be careful of what they print, air or post because they could be held liable.

    Fijilive

  15. Budhau Says:

    Our boy Savu is at it again – the Fiji crapp has nothing to do with the Habeas Corpus ruling in the US. The constitution and those rules goes out the window in “extraordinary times”.
    Did did same US constitution protect the Japanese US citizens, from being sent to camp.

    Savu – cut out you crap about the US constitution – trying to impress us.
    The US stuff is a constitutional issue that has to do with Military tribunals created by Presidential Executive order. Whether that violated the Geneva Accord and UCMJ and those prisoners and violation of their rights to due process.

    This same Suprerme Court sanctioned the use of military tribunals against Germans captured on American soil during WW11 – or as you might say “extraordinary times”. And that decision last week – it was 5-4 – could have easily gone the other way.
    ..and how long did the court take when they came up with the Charika Prasad decision?

    Tui Savu – for a so called lawyer – you are full of it. You could have easily made a good case for your side – without all this crap.

  16. Mark Manning Says:

    The Presidents sanity is in question and has been for a long time , yet this has not been challenged through the Courts , yet at least !
    If the President was incapable of making a sound Judgement from December 2006 onwards , then all he has stated to have said since then , could potentially be challenged in a Court of Law .
    The Fiji times today said that Mr. Qarase , in his case against the President , questioned the Legality of the President to do what he did . It didn’t questioned his ability to make sound Judgements or question the President’s health at that and subsequent times .
    Perhaps the Court Application was flawed and needs to be addressed from this new angle to get the desired result . As for the Commander’s actions being treasonous , that could well be established if the Court accepted that the President was incompetent due to his poor mental health , yet that finding alone , wouldn’t prove a case of treason .

  17. IslandBoy Says:

    @SV – Naita Kutusebe, can you please e-mail me and copy Katalina?

  18. Mark Manning Says:

    Perhaps Mr.Qarase should be considering challenging Frank’s initial suspension of Parliament as an act of treason , as this was done before the President made any declarations . Also , Mr Qarase never did have Frank challenged for his seditious comments before the coup ! Why , no one knows !

  19. Mark Manning Says:

    Nothing to do with anything . But this poor guy spent more than half his life under coups !
    http://www.fijitimes.com/story.aspx?id=103193

  20. Soul of Fiji Says:

    To Aiarse, the three judges did it to themselves, they insulted their own integrity.

    No matter how he or Budhau or Choro or the PIG and his PIGlets try and snuff out the peoples opinion on the judges useless intepretation, the truth will always expose them.

    BS can get you to the top but will not keep you there. YOU LIVE BY THE GUN YOU WILL DIE BY THE GUN, mark my words and when it happen do not be supprised.

  21. Adi Kaila Says:

    How true is that SOF –

    I am just as disappointed as everyone else with an iota of commonsense about the miscarriage of justice handed down by gates and his cronies, but it has also revealed their complete disregard of the law no matter how it is interpreted by them.

    gates the gigantic poop and his cronies have become big fish in a scummy little pond that is the ig – they have reached heights they would otherwise struggle for in their homelands. Amazing how gates upholds all that the bipolar pig stands for? What’s that all about?

    For all of us law abiding citizens the COURT OF FLAW revelation has exposed exactly what we all knew and it alerts us to be more selective in our behaviour, more careful and watchful.

    Dredre tiko, dredre tiko, kele mai na Zephyr tagitagi tiko.

  22. natewaprince Says:

    Budhau and Bainimarama,

    Went to bed holding each others banana,

    When Tui entered the room,

    He picked up a broom,

    A nd whacked the shit out of these two ”others”.

  23. ex Fiji Tourist Says:

    Welcome back the limerick loving blogger.

  24. Adi Kaila Says:

    NP – the two others are lodged in the pot hole at 4 miles.

    Totolo ragone – me lai veicage taki

  25. Billy Says:

    Contempt of court? The 3 judges have just done that by themselves, brought the court down to such a level of ridicule and contempt. Evidence of “influence” by illegal regime on the court decision? Check out p2 sat 11/10 FT: L-R: scuttle, aiarze, X,X, byrne, gates! Sure they didn’t talk “shop?”

  26. Budhau Says:

    Nice one NatewaPrince, although you could have made better use of that broomstick.
    May I make a suggestion or two.

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