Gate’s flawed Judgement.

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.

 

Tui Savu.

Lawyer.

Townsville QLD.

29 Responses to “Gate’s flawed Judgement.”

  1. F.I.R.M Says:

    Tui, iko ga na man, thank you for your insight Tui,you have shown us that there is still light at the end of the tunnel I could not wait to register and be organise in our fight for the freedom of our people when we are together nothing will stop us even Bainimarama and his goons.
    Vinaka to you Tui.

  2. Ablaze Says:

    Another good explanation for those us that are not familar with works of the judiciary.

    I am learning though so better watch out – sa na gai levu ga na bush lawyers! ! ! ! ! !

    Seriously, where do we draw the line? We have to draw it somewhere? Stop all the breaches against the law and the continued band-aid approaches otherwise we will be drafting decrees, abrogating or reversing the constitution, abolishing the Supreme Court, etc, to oblige coup perpetrators and those in the judiciary to defend and protect their actions in any coup.

  3. Jean d'Ark Says:

    Hey – have any of you guys seen Michael Field’s demolition of the Gates Judgment?

    Check it out on http://www.michaelfield.org/Fiji%20Hc.htm. It’s an absolute riot, and pours out on him all the contempt he deserves for his one-eyed, intellectually-and-morally-bankrupt judgement!

    We should register our protest by spamming the essay from our secret gmail accounts to entire mailing lists (gmail instructs you how to import your Outlook mailing list to your gmail account). Let the people know just how contemptible he is!

  4. Mark Manning Says:

    Thanks Tui
    I’m guessing that as the President may have been under duress to give Frank what he wanted , that it could be possible , that Justice Gates has also found himself in the same situation , and had to acquiesce ! But Andrew Hughes chose to leave his post or be killed !
    Justice Gates , may have deliberately left the Judgement open to criticism and appeal because that may have been the only way he could save his neck and that of his fellow Judges . Remember , Frank has been the Commander , a very dubious one at that , over the killings by his own soldiers , of up to 9 or 10 people , all innocent civilians as well as some soldiers of Fiji . I wouldn’t doubt for a second , he could have a Judge murdered also , after all , he doesn’t respect any Law !
    Watch the movie : – The godfather , 1972 .
    My Father made him an offer he couldn’t refuse !

  5. Mark Manning Says:

    I forgot to mention , the 1st. part of the Judgement handed down by justice Gates , clearly states that they were only looking at the ” legal ” right of the President to act !
    One could put this another way if one were trying to see what Justice Gates might have been trying to say , were he in fact , unable to !
    And that is ( they were ” looking at only ” , rather than , ” only looking at ” ) .
    Looking at only , clearly implies a whole new ball game . Tui , what do you think ?
    I often ask my wife , I know what your saying , ( please take the rubbish out ) !
    But I want to know ” what your not saying ” , ( you lazy man , get up and do your share , I’ve been working all day and all you do is just sit around the house ) !

  6. Soul of Fiji Says:

    Thanks Tui Savu for the analysis of the judgement by Gates, even before the judgement everyone at RFC, WFC and now Solivakasama have predicted the outcome of this Judgement.

    The PIQ has been advised right from the start on how to behave so that this judgement will be based on the Presidents perogative, as Tui has detailed above the judges skim over the and did not dig into the important pieces of evidence as expected from illegal IG appointee.

    The Pakistani model is followed to a que where Pervez opponents are continually turned back by the Presidents appointee judges. An Indian friend of mine once told me back in 2005 that Fiji does not need democracy we can follow the Pakistani model (our discussion came to the topic because the idiot of a PIQ was threatening the LQ government).

    When Rabuka was taken to court and charged with treason in 2006, I was expecting a jail term to follow the CRW and 2000 coupsters who was jailed by none other than the Shameem judge, but we know that Rabuka was not found quilty by the same judge, this confused me.

    Now I know that the same judge is setting a precedent on what to follow in order to acquit the PIQ and his murdering piglets.

    Now we have 3 wise monkeys as our high (Coconut) court judge, see no evil, speak no evil and hear no evil. Now we have two sets of standards been set by the Illegal IG, one for the friends of the Illegal IG and one for the rest of Fiji.

    However only the rest of Fiji will be arrested and harassed and even murdered to safe guard the corrupt, power hungry, insignificant, coverting, racist, egotistic, lazy, good for nothing, con artists, cowards, choro-choro individuals.

  7. ex Fiji Tourist Says:

    Brilliant article by Michael Field.

    The intellectually correct parts of Injustice gates’s ruling [ the other 2 stooges were asleep ] could be chiseled onto the back of an Aspirin.

  8. LUVfiji Says:

    Brilliant indeed.. @exFT. Thanks Jd’A for bringing that one to our attention. Here is an extract of that article by Michael Field:

    QUOTE

    Well, perhaps like that cocktail at the French Embassy, he had already decided.

    And he gives Iloilo power and competence and the ability to act which any ordinary person, witnessing his vegetative state, knows not to be true.

    The judgment rambles along, at several points again Gates quotes Gates to justify Gates.

    It all boils down to this: “The President’s actions at the relevant time were valid and are held to be lawful.”

    Well, if you believe that, you’ll believe anything.

    And the indigenous? They played by the judicial and constitutional rules and a white judge on a big salary failed them. What they do next will not have a lot to do with that kind….

    Fiji is doomed to be a sad little sideshow and Gates will not even be a footnote in it.
    UNQUOTE

  9. patience Says:

    As usual, Field is brilliant, incisive and to the point. In many ways, he verbalises what many of us can only type here on Solivakasama.

    Qarase and SDL will appeal in vain to the Court of Appeal which has been wholly appointed by Gates. After his illegal appointment as Acting CJ, Gates appointed Shameem, Byrne, Pathik, Goundar, Mataitoga, Scutt, Bruce, Datt and Hickie to the Court of Appeal. These judges all owe their appointment to Gates and Bainimarama. They will NOT be ruling against Gates and Bainimarama.

    The only remaining legal judges are the Supreme Court judges. But the appeal court will delay the hearing and ruling if Qarase appeals from the stacked appeal court. Or Gates will not arrange for the sitting Supreme Court judges to fly over and instead appoint more tainted, biased judge lackeys to the supreme court.

    We wait in vain for justice. Only we can give ourselves justice ragone. Oi keda ga, kevaka eda tucake vakataki Vilisi Nadaku. Mada navunavucitaka vakavinaka na noda saqata na matanitu butabutako nei Bainimarama kei Gates.

    Kudos to SV, we look forward to the new site SV team! Onwards!

  10. Jese Waqalekaleka Says:

    Kua ni leqa bloggers, they can stack the Courts with their stooges, but the International Community will not be fooled either. It must be embarrassing to have judgement on your side, but travel bans remain in place!

    Tells you how much the International Community thinks about the judgement.

    Gates, shove it boci!

  11. Billy Says:

    Sa nodrau cagi na Tui qo! Can’t say much for my name Billy in NZ. Academics are not known for principled stands either, few exceptions though!

  12. patience Says:

    Vinaka @ JW – yes definitely, its up to us primarily. The international community follow their own procedures when it comes to dealing with rogue governments like Fiji. The Commonwealth follow the Millbrook Action Plan for implementing the Harare Principles; the EU follows the EU/ACP Cotonou agreement; the Pacific Forum follows Biketawa. December is d-day for Bainimarama to explain himself to the Pacific leaders in PNG. In the meantime, the aid/travel sanctions remain in place – neither Australia, NZ, US are lifting their sanctions, despite the ruling.

    In the meantime, 30,000 civil servants will be signing the charter forms. So will 13,000 18 year olds in Form 6 and 7. So maybe they’ll rack up 50,000 signatures? even if it’s 100,000, does that mean anything, when the military are still claiming legal authority to haul people up to barracks? There is no security of person and the flagrant disregard of the constitution continues in Fiji.

    Don’t even ask about Ms. Wikipedia and the ahmadiyya rights commission! They haven’t produced a report into the human rights abuses committed by the military, nor measures by the military and police to ensure such abuses are not repeated.

    No, with the President now holding authority to promulgate any law he pleases, life is certainly more precarious in Fiji – he can promulgate any amendments to the constitution or public order Act that voceke so desires – demand records from vodafone and digicel and connect (this is already a given anyway; control the movement of people like under the emergency decrees; specifically outlaw one-man protests as unlawful assembly or whatever voceke and his idiot military want.

    I’m just watching Tui/Vilisi on the late news and I am so proud of him! Thank you for putting your life on the line Vilisi! It takes one to show the nation and the world that we do not all support the coup. I believe it is Vilisi that will spark a slow burn to resist frank’s coup.

    The news also has Naiulukau moving across to Fijian Affairs. This makes him chairman of GCC, NLTB, FAB and effective control of the Fijian administration, including qoliqoli, titles, land and provincial councils. Looks like the doomed effort to reconvene the GCC continues with the IG now desperate to have a VP appointed to backup up diaper pressie. Now with clear power to legislate, the IG may be stepping up its bid to reform land, nltb etc as demanded by their charter farter and promulgate the many laws that the charter demands.

    The IG timetable rolls on bloggers. Only SV, Vilisi and the empty charter forums signify the opposition to the flawed vision of the coupsters and charter farterers. We must remain vigilant – don’t sign the consent forms for your 18+ kids to attend the charter farter sessions at their schools and remind those in your community/village to boycott the charter forums. It ain’t over yet, though the IG would like us to accept defeat!! Onwards!!

    =================
    From Fiji TV news
    13 October 2008

    The Ministry of Education has directed all school teachers and students above the age of 18 to undergo awareness programs on the Draft Charter.

    A circular obtained by One National News reveals students would attend these programs on the Draft Charter during school hours.

    The directive was issued last Thursday.

    According to this Circular, awareness workshops for civil servants in the Education Ministry have already started with Head quarters, the Fiji College fo Advanced Education and the Education Resource Centre.

    But the documet goes on to say awareness for 10,000 civil servants is a mammoth task as every primary and secondary school teacher including Form 6 and 7 students through out Fiji are to be made aware of the People’s Charter and to respond on the required forms.

    Signed by a Joe Hewson, the circular tells school head teachers and principals, parental consent for students in Form 6 and 7 are to be sought first before they attend the awareness workshops.

    The time-frame given for teachers and students is October to Novemebr 28th, a time when students should be studying for end of year exams…

    Schools have also been advised to inform the Ministry of their staff and students numbers to determine the number of booklets and response forms to be given out to each school.

    The circular also states Head Teachers and Principals have to accomodate and allocate time for awareness in their schools. It will take 2 to 3 hours of consultation per Awareness Session.

    The Fiji Teachers Union says any disruption to classes is unacceptable.

    The union also believes the time isn’t right to involve students in political issues.

    With regards to teachers attending the workshops, the FTU has decided its the choice of individual members, but are the authorities letting them make the choice?

    Executives from the NCBBF Secretariat are currently in the West, and efforts to obtain comments from them proved futile.
    http://www.fijitv.com.fj/index.cfm?si=main.resources&uid=newsnational&cmd=forumview&cid=13786

  13. Isalei Says:

    Gates has opened the floodgates to something that would haunt him in time to come.

  14. Mark Manning Says:

    Rabuka’s case in 2006 was thrown out because of a lack of evidence only , not because he was found not guilty !
    They are two different things , he could still be guilty , but where is the proof !

  15. Mark Manning Says:

    Rabuka’s case in 2006 was thrown out because of a lack of evidence only , not because he was found not guilty !
    They are two different things , he could still be guilty , but where is the proof !
    Next the school children will be running around in fatigues ! I think that one’s been tried before too ?
    ————————————————————-
    “My program for educating youth is hard. Weakness must be hammered away. In my castles of the Teutonic Order a youth will grow up before which the world will tremble. I want a brutal, domineering, fearless, cruel youth. Youth must be all that. It must bear pain. There must be nothing weak and gentle about it. The free, splendid beast of prey must once again flash from its eyes…That is how I will eradicate thousands of years of human domestication…That is how I will create the New Order.” — Adolf Hitler, 1933.
    ————————————————————-

  16. Mark Manning Says:

    Frank and Co. having tea with the Military Council .

  17. benhur Says:

    At least the SDL has proved without a doubt, that the Fiji Could System is as we’ve figured since the coup,are in cahoot with the Military Dictatorship.I have no doubt that Gate is a clone,spy,mole or pigeon hired by a foreign government(s) to cause instability to Fiji’s emerging economy and stable Government.I think the best way to ensure that this type of bastard doesn’t enjoy their money is to follow the westminister model of removing an obstackle…CHOP HIS HEAD-OFF ON THE CHOPPING BLOCK.

  18. Ablaze Says:

    Yadra, a lot of oldies have come back to the fold. Please keep it up as together we will make Vilisi’s lone protest reach the height of what we all want for our country.

    A good letter in today’s Fiji Times! It could have been a simply solution then but very complicated and messy now.

    Blame game

    The Fjian elite have themselves to blame for the high court declaration that the President had those sovereign powers. They were against it when Mahendra Chaudhary tried to rein them (Presidential powers) in during his term as PM, which culminated to the 2000 coup.

    I recall that Mahend wanted to introduce a bill to ammend Presidential powers so that the President can only act on the advice of Parliament and its elected Prime Minister.

    Now we only have ourselves to blame.

    Yet what surprises me is the contrast between Justice Gates ruling in Chandrika Prasad case and the Qarase case with regards to those Presidential powers.

    Back then he said President didn’t have those powers, now it has changed.

    How?

    Has the law changed?

    Utiko Nabunobuno
    Lautoka.

  19. LUVfiji Says:

    And we all heard this one last night which needs to be highlighted here!

    An officer of the Suva-based NZ High Commission is under Police investigation for ‘bothering’ to watch Friday’s military parade through a pair of binoculars from his nearby apartment.

    A threat to national security!

    Now we know; please do not use the likes of these instruments or wave yr shower curtain with a message for the big D. For goodness sake, its a THREAT to national security in Fiji.

    So backoff good people. Just read the charter and sign the form!

  20. Ablaze Says:

    LUVfiji you have got to be kidding? “How low can you go?” But you have got to laugh!

    Well now that might be just what it takes for NZ’s Helen Clark to take a tougher stance and kick out all the relatives of those in the boidada Regime.

    At least our hero Vilisi wasn’t hiding – he wanted the whole world to see him with his banner! Go Vilisi Go!

  21. Tosotiko Says:

    This judgement is a good lesson too, to us Fijians. As pointed out by Fields, the Qarase team only asked the court specifically to determine the legality of the President’s action and that is what the Gates team have determined.

    We always leave things to chance and are very good in brushing aside the need to take things seriously and put in our own good work, the analysis, the organisation in order to achieve the result we want. Perhaps this will teach us not to take things for granted. They are stripping away everything from us as Fijians and this judgement is part of their consistent strategy to totally humiliate us. But thanks be to God, it may bring out the warrior spirit of old lying latent deep within our souls, so that we will fight the good fight…standing up for our rights and heritage resolutely….the way He expects us to be.

  22. newsfiji Says:

    Hey folks, i’ve been reading Michael Field’s summation of Pufta Gates Judgement! Well, he’s just made my day! Rolling around in laughter!

  23. newsfiji Says:

    Folks please update your list of items that is a threat to nationals security:

    1. shower curtain with about about 5 words written on it
    2. binoculars

  24. avore Says:

    good to hear on Fiji One news that somebody stuck something up gates tailpipe. not for the first time and probably not the last.

    ha hah

  25. IslandBoy Says:

    Bula Vinaka SV – Sorry to digress, dua ga na kerekere oqo. I would like to send the entire judgement document to someone overseas. Can someone please give me a link or post a copy of the judgement where it can be downloaded.

    Vinaka Vakalevu!

  26. Budhau Says:

    Tosotiko wrote “Qarase team only asked the court specifically to determine the legality of the President’s action and that is what the Gates team have determined.” How come Savu never figured that out.

    yeah right – in law the court always is asked to answer a question and the question usually starts with the word “whether….”

    You take the question, you apply the rule (the law), you do an analysis and you get to a conclusion. Simple.

    Did anyone ask the court to figure out what Bainimarama did was legal or not – or if what FB did was illegal on the face of it, does his defense of necessity apply?

    Read the case – and you will find out how incompetent our side or should I say your side was.

  27. IslandBoy Says:

    @newsfiji – don’t forget rope, cane knives and hosepipe taken from Ballu Khan’s house as evidence of his intent to kill members of the IG.

    How many households in Fiji do you think are also guilty of keeping cane knives, bits of rope and hose pipes that are falling of the standpipe, in their garages, under the house, under the outside staircase, in the wash house or just leaning up against the side of the house.

    Please let the authourities know and have them all arested immediately.

  28. Dauvavana Says:

    Naita,

    you can download it from http://www.fijitimes.com bottom left in pdf

  29. IslandBoy Says:

    Vinaka Nite – Got it!

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