Bloggers, well here is another letter from our regular contributor Lawyer, Tui Savu concerning the Gate’s judgement, which was sent to the Dailies in Fiji today. It seems, excuse the pun, Gates has opened up the flood-gate of criticism and we at SV are confident, the Appeal will be successful and the real Judges will shove the Gate’s decision up where the sun does not shine. We endorse Tui Savu’s letter. On another note bloggers, we are meeting in 1 hours time to discuss the website and will keep the other Administrator’s updated. Once the website is up and running, we will announce it on this blog and show you the link ragone. Tui Savu keep up the writing and keep up the fight ragone!
13th October 2008.
Reading the 49 page Gate’s decision, there is a glaring omission, which in my respective view if properly considered and applied, would have upheld Qarase’s Application.
Paragraph 47 of the judgement is part of the chronology of events leading up to the coup and I specifically refer to the Wellington Talks.
ACJ Gate’s merely mentions it in passing, when he says: ‘Efforts were made through the GCC to resolve the impasse. A Meeting was organised to take place in Wellington, New Zealand on 29th November 2006 between the Prime Minister and the Commander. They met as arranged…’(emphasis mine)
ACJ Gate’s then continues with the chronology of events and concludes with the affirmation that President Iloilo was acting within his prerogative powers during the time of crisis and his subsequent actions including the ratification of Bainimarama’s actions and granting of immunity were lawful and valid.
The omission I refer to here is that following the Wellington Talks, Qarase capitulated to the demands of Bainimarama and was effectively barred by soldiers from visiting President Iloilo to update him of the same.
Bainimarama following the Wellington Talks continued to make public his intention of removing the Qarase Government and giving them an ultimatum to resign, despite the fact Qarase and his SDL Party had already capitulated to his demands!
At this point, Bainimarama no longer had any legal or moral grounds to continue with his threat because he demands had already been met!
Yet Bainimarama and his military effectively bullied and removed the lawful Qarase Government out of office and have been vindicated by the Gate’s decision.
President Iloilo indorsement of the Commander’s action ‘acting in the best interest of the nation and most importantly in upholding the Constitution’ proved to ACJ Gate’s and Justices Byrnes and Pathick, the manifestation of his intention to exercise prerogative power.
The Gate’s decision conveniently ignores the fact, President Iloilo prior to the coup had ordered Bainimarama to stand down and relieved him of command and appointed Colonel Saubulinayau to act as Commander pending investigations.
This direct order was disobeyed by the Military, and they forced President Iloilo and under duress countermanded his previous order and reinstated Bainimarama.
The issue of whether President Iloilo has prerogative powers were not disputed, but rather its scope and availability.
Paragraph 144 of the judgement says: ‘As Counsel put it ‘The prerogative, being residual and inherent consists of a rubric or category powers that are capable of adjusting to new situations.’
What the Gate’s decision in my respective view failed to consider is the fact, the prerogative, being residual and inherent cannot be used in a vacuum or used to justify the usurper’s unlawful actions, unless it can be established by facts, that it was the only means of preserving the nation from destruction.
As I had mentioned before, the demands made by Bainimarama prior to his illegal takeover had already been agreed to by Qarase following the Wellington Talks, so what was the legal basis for President Iloilo to use the prerogative to indorse Bainimarama’s actions?
Furthermore, on what evidence did President Iloilo rely upon to make a finding that Bainimarama was ‘acting in the best interest of the nation and most importantly in upholding the Constitution?’
The Gate’s decision does not elaborate on these issues, but makes swiping generalised comments scrutinising Qarase’s subsequent actions, yet fails to do the same with Bainimarama.
The Gate’s decision also failed to review whether the prerogative is available to a President who acted incompetently and/or may have inadvertently contributed to the crisis themselves?
I respectively submit, had the court deliberated on this point and reviewed the President’s behaviour leading up to the crisis, it would have found him incompetent.
Following this finding, it would have been forced to hold in rare circumstances where the President is incompetent or has been rendered defunct by the usurper, they can no longer lawfully exercise the prerogative, since they have become a tool for the usurper and cannot be trusted to independently manifest their intention to exercise their prerogative power, which is the exact situation in Fiji today.
Gate’s decision in my respective submission is flawed for the above reasons and should be appealed, so the citizens of Fiji can feel safe and rely upon a more balanced judgement.
The judgement has opened a Pandora’s box, which threatens the very democratic foundations in Fiji and only perpetuates the coup culture.
Lastly, it should be appealed because it is biased towards to the Military and now provides them with a roadmap on how to illegally remove an elected Government and acquire immunity at the same time.