Members of the public and media personnel await the landmark ruling
Three High Court judges have decided that the acts of the President after the December 2006 military coup, were lawful; that the President had reserve powers to ratify the acts of the military in the takeover; to grant immunity to those who did the coup; and that he could act without any specific authority derived from the Constitution.Until an Appeal proves otherwise, this judgment has to be respected as the “rule of law”.
The legal eagles will no doubt have a field day asking whether Qarase’s lawyers presented the best case; or whether this judgment presided over by Justice Gates, is totally consistent in point of law, and philosophically, with Gates’ earlier judgment in the Chandrika Prasad case.
And tired of years of political confrontation and uncertainty, many ordinary Fiji citizens could not care less about such legal niceties: they just want “to move on”, to “move forward”, and yes, “to build a better Fiji”.
Unfortunately, those who care about the future generations, need to ask some fundamental questions, painful as they are.
Can a High Court judgment effectively reverse 38 years of governance by people’s elected leaders, to one where an unelected President can become the supreme authority because of a military coup?
Can Fiji’s President be removed and re-appointed by the Commander of the Fiji Military Forces?
Is our Constitution’s system of “checks and balances” compromised if such fundamental questions (as above), are decided by a panel of High Court judges presided over by an Acting Chief Justice, who is there only because the lawfully appointed Chief Justice was removed by the military coup?
Is this High Court judgment implicitly setting out a successful formula for making future coups legal, effectively undermining Bainimarama’s claim that the 2006 coup will end all coups?
How is a President appointed?
There has been frequent reference to the “President’s mandate” which is supposedly being carried out by this Interim Government and all its supporters.
Before the December 2006 military coup, there was indeed a lawfully appointed President, in the person of the respected Ratu Josefa Iloilo.
But no one disputes that on December 5, Commodore Bainimarama illegally removed this lawfully appointed President, who was also Bainimarama’s Commander-in-Chief, under our Constitution.
Can we lawfully ask (as Qarase’s lawyers perhaps should have) was that the end of the lawful President of the Republic of Fiji Islands?
Under Section 93 of our Constitution, the President (or Vice-President) may be removed from office only for inability to perform the functions of office or for misbehaviour, and may not otherwise be removed. Moreover, any removal of the President or Vice-President from office must be by the Bose Levu Vakaturaga pursuant to this section.
Commodore Bainimarama had no powers to remove the President, nor to himself assume the powers of President. Our Constitution clearly states that a President of Fiji can only be appointed by the Bose Levu Vakaturaga on the advice of the Prime Minister.
The lawfully-appointed Chief Justice, Daniel Fatiaki, was then also removed from office by a sequence of events involving the Commander, soldiers, police and eventually an “instruction” from the “President”.
An “Acting Chief Justice” was then purportedly appointed.
How appoint to an “Acting Chief Justice”?
The judiciary, headed by the Chief Justice, is the most powerful “checks and balances” mechanism in our Constitution, being the body empowered to pronounce on the legality or otherwise of any action in our country, including military coups and the extent of the powers of our President.
The power to appoint an Acting Chief Justice is given by our Constitution only to the 3-person Judicial Services Commission comprising the Chief Justice, the Chairman of the Public Services Commission, and the President of the Law Society.
But the Chief Justice had been removed by the military coup. The Chairman of the PSC had also been effectively removed by the military coup, and another appointed by the Interim Government.
An “appointing committee” including the military-appointed Chairman of the PSC, and the President of the Fiji Law Society (Davenesh Sharma), was then abnormally chaired by another High Court judge (Justice Shameem).
The presence of the President of the Fiji Law Society was strange also, given that he subsequently objected to the “President” and the Interim Government for their removal of Nainendra Nand as Solicitor General, and he also objected to the “Judicial Services Commission” then appointing Christopher Pryde.
This three person “committee”, two of whom owed their presence to the military coup, then purportedly appointed Justice Anthony Gates as “Acting Chief Justice”. And Justice Gates then presided over a panel of High Court judges to rule on whether the “President’s” actions following the December 2006 coup were legal.
The public cannot question whether Justices Gates, Pathik and Byrnes acted impartially in giving their judgment.
But can the public lawfully ask: can a judicial process to decide on the legality of the actions of a President appointed following a military coup be considered totally impartial, if the military coup has itself changed the composition of the panel of judges, with the President’s involvement?
How to appoint a President?
No one disputes that Bainimarama, illegally removed the President.
No one disputes that he then claimed to use “the President’s powers” to dismiss the Qarase Government.
But under Section 109 of our Constitution, even a lawfully appointed President may not dismiss a Prime Minister unless the Government fails to get or loses the confidence of the House of Representatives.
No one disputes also that Commodore Bainimarama claimed to reappoint Ratu Iloilo as “President”.
But Commodore Bainimarama had no authority whatsoever to appoint anyone as President- even if it happens to be the same person who previously held the office. Bainimarama was abrogating to himself the powers of the Great Council of Chiefs.
The President’s authority is not a gun to be taken away, used by the Commander for his own ends, and then “given back” at his whim. The President’s authority under the Constitution not only gives the President his powers, but also requires him to defend the very integrity of the Constitution, including total support of an elected Government.
Our people must ask, what kind of “authority” deriving from the 1997 Constitution, was Ratu Iloilo accepting from Bainimarama, knowing that he had usurped Ratu Iloilo’s powers and even exceeded them in removing the lawfully elected government and the lawfully appointed Chief Justice- the head guardian of the Constitution itself?
How legitimately can Ratu Iloilo claim to be the “lawful President of the Republic of the Fiji Islands”? Or is he simply a “Military President” whose authority only derives from the Commander of the FMF who did the 2006 military coup, and to whom he may now feel grateful for being “re-appointed as President”?
And can the legality of such a President’s actions be decided by a judiciary, whose head has also been appointed by processes fundamentally altered by the military coup itself?
President’s Power to Make Laws
When Fiji accepted the 1997 Constitution, we cut our allegiance to any vestige of sovereign powers of the British Crown and its Privy Council, by renaming our country, the “Republic of the Fiji Islands”, and making our own Supreme Court the final court of appeal.
While Section 45 of the our Constitution states that “The power to make laws for the State vests in a Parliament consisting of the President, the House of Representatives and the Senate”, the powers of the President and Senate are subservient to that of the elected House of Representatives and elected government.
Section 47 ensures that the Senate cannot reject, more than once, any Bill coming from the elected government derived from the elected House of Representatives. Section 49 ensures that the Senate cannot reject even once, any “Money Bill” sent by the elected government. And section 46 states that “The President must not refuse to assent to a Bill duly presented for his or her assent.” by the elected government.
So under our Constitution, even our lawfully appointed President is subservient to the lawfully elected Parliament, the Prime Minister and his elected Government.
Can our people therefore lawfully ask: can a “President” appointed by the military, approve the illegal acts of the military, and claim to promulgate laws, including the granting of amnesty to the military, which removed the elected government of Fiji?
Of course, such questions can only be resolved lawfully by an Appeal against the judgment of Justice Gates, Pathik and Byrnes, in the Court of Appeal, and eventually in the Supreme Court.
Until that final Appeal is made successfully, the people of Fiji need to respect the decision by the three High Court judges.
But an Appeal must be made.
Or else we also accept that any military coup can be legalised following the coup, simply by making the appropriate changes to the judiciary.
This Pandora’s Box must be closed. For the sake of our future generations.