When we open Pandora’s box – Wandan Narsey

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.

42 Responses to “When we open Pandora’s box – Wandan Narsey”

  1. Mark Manning Says:

    change of topic .
    How come no one gets arrested over allegations of child sexual abuse and exploitaion in fiji .
    Is the I G now promoting this as part of a tourist package ?

  2. Mark Manning Says:

    Your parents are always your parents , but your parents aren’t alway right !
    And the same goes for high court Judges .
    Frank was already sacked while he was in Iraq in November 2006 . He isn’t even a the Commander and yet everyone follows him .

  3. kai zolo Says:

    Ratu Epeli said he would go to them on his capacity as a chief.

    “I’ll see them -from one chief to another,” he said.

    “That’s the level I deal with.”

    Ratu Epeli said he would also see those chiefs who had rejected him as the Vice president nominee in their meeting prior to the disbanding of that august body.

    When asked what he thought the chiefs who had rejected him earlier on would think of him Ratu Epeli said “sometimes things go around to a circle. They’ve rejected that, they have to give you their reasons why they did that.”

    But he said that would not stop him from going to them.

    “I will go and see them where they are, all of them. If they are chiefs, I’ll see them.”

    Eveli the chiefs you are talking about a true FIJIAN CHIEFS not Tongans like you or part like voceke dont waste your time,we know what is best for us.

  4. Ablaze Says:

    That is the problem! I I I I I I am I am I am! For once in your life listen, you may just learn something.

    Even people like us have learnt to listen to other people’s opinions since the coup and are now capable of making up our own minds so forget it, no one will listen to your selfish wants.

    Sa sega beka ga! It is do as I say! Go to Tonga and dicktate there!

  5. Frida Says:

    He wants to go and meet with them where they are. Does he know about Fijian protocol? Like we say in Kadavu – kua ni tagi na toa mai nomu koro me rogo mai ke. I agre with ablaze – too much I I I I I I – he should get off his high horse and listen to what the common people are saying.

  6. Peace Pipe Says:

    Good one Wadan Narsey. I endorse what he said which is “an Appeal must be made.” Don’t let this perversion of justice by gay gates get away unchallenged endorsing the coup and reinforcing their hold onto power.

  7. newsfiji Says:

    Thanks SV for posting this separately. Wadan Narsey could not have said it clearer and truthfully.

    I also take my hat off to the Fiji Times for having the guts to publish this piece.

    Let’s wait and see if the Blockhead wannabe unconstitutional AG moves for Wadan to be arrested for writing a piece that is a threat to national security. Blerry BOCI.

  8. Ablaze Says:

    @Peace Pipe & newsfiji – while we have people like Epeli Naiulukau as leaders Fiji will never move forward.

    Qarase can make his appeal and he should, but if these people do not budge nothing happens, they will keep going the way they are and it just prolongs our suffering.

    On the other hand if Qarase appeals and wins there will be so much pressure from overseas – it will give the Regime 2 things to do – either they step down or officially declare Fiji a dicktatorship.

    If they step down we then can start doing things the legal to move the country forward. If they officially declare Fiji a dictatorship, international countries will take a much tougher stance which will definitely lead to their failure. When that happens we then have to pick up the pieces and start the process of building a coup free Fiji.

    We need to get of people like Naiulukau or entice them to come on board.

  9. F.I.R.M Says:

    Ablaze
    I think you are right everytime you say something,you are a beacon to us you inspire me to not to turn my back on Fiji,and to think that the most honourable thing for any of us to do is to stand together and resist this evil regime. Thanks to Solivakasama management for being able to provide for us .
    Keep fighting.

  10. ispy Says:

    Epeli Nailatikau would do well to remember that true nobility is not a birth right, it is earned.

    Its easy enough to be born born with a silver spoon in one’s mouth.

    Its much more difficult to earn the respect of one’s peers and one’s people.

    Just look at how his nomination for VP got rejected by the people through their Chiefs at the GCC in 2007.

    Now hewants to meet ‘one to one’ because ‘thats the level he deals in’.

    What arrogance.

    I’d bet my bottom dollar he will have two military officers in the room with him during these ‘one to one’ meetings…

  11. Isalei Says:

    Truth is Eveli has no people who look up to him as their chief, unlike the Turaga Tui Cakau, Marama na Roko Tui Dreketi and Turaga na Tui Namosi. How can someone with no title head all the Chiefs? (Naisogolaca is just a household not a vanua).

    @ Dr Wadan Narsey, spot on! You the man, can understand how pissed off he is. For the sake of the future generations, please close pandora’s box of evils before it gets out of hand, sa na sega ni taqei rawa na levu ni coooo!

  12. A Vore Says:

    the chiefs of Fiji will decide how they meet with naulukau. He will not decide. They represent their people while he represents nothing but looking after himself and his family.

  13. kai zolo Says:

    The Pandoras Box has been opened see the news mishaps every day.I dont see Voceke or the IG pigs going around and PRing their crocdile tears sympathy.REPENT you losers.

  14. IslandBoy Says:

    WADAN NARSEY FOR MINISTER OF FINANCE!

  15. Isalei Says:

    Second that! And Graham Leung for AG, Ratu Joni for Chief Justice! Problem is we have such intelligent people around who can manage our national affairs to such great heights and to the level of Tier 1 nations, yet must settle for below average nutties such as our current forceline, wannabe jackof alltrades IPM, IAG and all Interim Ministers. Resulting in real poverty of the mind and mentality. Isa Viti lomani! When will you realise your full potential through people that have your real interest at heart and not their own?

  16. Budhau Says:

    The legal issue in this – for most of you, it is too complicated to grasp – many of you can not distinguish between the acts of the President and the acts of Bainimarama as it relates to this coup and its aftermath.

    Lets look at some of the “by the way remarks” made by Narsey.

    1) “The legal eagles will no doubt have a field day asking whether Qarase’s lawyers presented the best case…” Or “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?

    Remember I told you folks that it was Qarase’s local boys who screwed up this case – not those foreign legal experts. On appeal, none of these new issues that people are talking about would be raised. The scope will be fairly narrow and technical.

    2) “……many ordinary Fiji citizens could not care less about such legal niceties: they just want “to move on”…”

    Remember, I told you that local folks in the street don’t give a crap about this court’s decision. They will not protest or stand up for Qarase – because they know the truth as to what the Qarase regime did for the common folks.

    3) “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?”

    No court decision or Constitution will stop the coup culture – the coup culture will only stop if the Fijian people change their mindset. All prior coups have been endorsed by the majority Fijians – and I do not see a change in that mindset. The problem we have now has nothing to do with whether a coup is good or bad – what we have is that the wrong guy pulled this coup – I am sure if Chaudary would have won the last election, instead of Qarase, a coup against the Chaudary regime would have been justified in the minds of majority Fijians – remember Chaudary would take our land and sell the country to India, destroy our culture and institutions, yada yada.

    4) “This Pandora’s Box must be closed. For the sake of our future generations.”
    That is sort of like “The horse is out of the barn, so it’s time for barn door-locking measures.”
    The Pandora’s box was opened by the Fijian people back in 1987 and it is only the Fijian people who can close it. No constitution, court decision or coup can put an end to this coup culture – when we have a military that is able and willing to remove a democratically elected government and a population that is there to cheer the military on or is indifferent and couldn’t care less.

    Narsey makes some good points – I wonder why Qarase’s local lawyers did not discussed these issues prior to filing the case.

  17. natewaprince Says:

    A good one’s a dead one,but in Wardan Narsey,we actually have a live one .Thanks Doc.

  18. natewaprince Says:

    Just watched ABC news.It showed interviews with participants of the meeting Grahme Leung attended in Aussie.

    Aussie lawyer George Williams,a veteran of Fijis courts,sent a strong message to the pig that nothing had changed after the court ruling and that the onus was still on the illegal regime to hold elections as promised.

    What he also said was that just because of the ruling,it didn’t mean that the move towards elections should stop.He added that the ruling opened the door for more illegel acts in future,or opening Pandora’s box,as Dr Narseys said.

    Leung added that our Pacific neighbours should put pressure on Fiji to hold elections.The only part that spoiled my morning was the ugly mug of John Sami saying that the court ruling should indicate to the people that this govt was legal,blerry magaitinana.

  19. natewaprince Says:

    Have to add my 2c worth on Eveli.How I hate the look on the bastards face on TV,BLERRY AROGANT ARSEHOLE VIAVIA TURAGA.

    Ni oti na matanitu butabutako qo,drau na sega tale ni cakacaka tale vata kei nomu yaca,drau veicai.Mai rawataki tu na job ,drau sotia butabutako.

    Blerry shit!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

  20. Budhau Says:

    Good to see NP.

    Now, why don’t you look at this from another angle.

    According to the Court – the IG can rule and make decrees. The Court clearly said that it cannot set a timetable for the elections – it is the IG that sets the timetable – so what are your boys talking about – early election – it looks like the IG is working towards “getting Fiji back to a democracy” with that Charter – that’s what matters. So those electoral reforms seems like OK.

    Now, you watch FICAC go after Qarase – he might look OK in that orange jumpsuit.
    …and that crap that the media was pulling – watch out for that media legislation – it gonna be payback time.
    To hell with Aust and NZ – China, here we come. Never mind the Forum.
    ..and that EU – has our sugar industry collapsed yet.

    and that sillyass notion of taking this case to some international court – ever heard back from those guys – must have been some idiot local lawyer advising Qarase.

    ….and guess what, Qarase opened his loud mouth and said Aust and NZ would help him take his case to this International Court – just like he thought Aust and NZ would come invade Fiji on his behalf. Isn’t this asking NZ and Aust. to meddle in the internal affairs of our country.

    BTW – NP – that line the “only good Indian is a dead one” – very good, I hope you did not piss off Colin – he might think such racists remarks does not do this site any good.

  21. natewaprince Says:

    Hmmmmmmm…………………… dua mada e dolava na katubaleka,sa baci boi mai na kora, blerry damn.

  22. Isalei Says:

    Fijians can never be racists in their own country! Its others who come in uninivited that bring in the race issue. Fiji must go back to being a Pacific island nation not a small Asia. And as done in NZ people should be called according to their nationalities- Asians, Europeans, no way will we allow every boci to become Fijian. And the in between? At least they have a choice whichever!

  23. Dauvavana Says:

    NP my tau, it is so good to have you back. Vacava mo sogota tu mada na gusui magaitinana qori (boiboi kari) e na nomuni yaragi ni vala ka ko dou kila tani kina na Juraga ni Natewa…………..bahahahahah

  24. Megapipes Says:

    Budhau,
    Plse take to to access and read the contents of arguments presented by Nye Perram for the Plaintiffs and then go and read the decision of the Gates Committee. There is a an obvious bias judgment becos what Mr Perram alluded to was the fact that events leading up to the the actual takeover was in fact instigated by the Military and the hence the crisis which was the focal point of the judgment that existed was in fact being created by the usurper, not by the plaintiffs in this case. Gates said that the Prezzie acted in good judgment becos of an existing crisis and needed to pull Fiji out of that crisis. Who created the crisis? U and the Gates committee are obviously blind to this question as you r quite happy to narrow your thinking only on the fact that a good judgment was made to bring us out of the crisis. The whole point being made was why create a crisis and then go running to the President to legitimize any need to take over? That is why people are saying that the Prezzie now has the power to throw out any govt as he has those ‘unreserved’ powers contained somewhere between the lines or in invisible ink in the constitution. U are obviously blind to the fact that the decision is a joke amongst those in the legal profession. The bias is stemmed from the fact that the Gates Committee (GC from now on) takes the speech by the IPM after his takeover as fact and reads all the points of this speech in detail to support their decision whilst not even taking time to view with balance the speech made by Qarase after the Wellington meeting. How this decision then can be seen to be made in a fair and balanced way one might ask? U shud take time to read the statements by Narsey and see that the crux of his article is aimed at the illegal appointment doen by the Commander after his takeover. The cosntitution does not provide for the Commanader to sack the VP and Pres nor does it provide an avenue for the same to appoint a Pres as he had done. That is the point of this article. U in your fucked up wisdom chose to only extract comments that would seem to rubbish the SDL and Qarase. Bro I suggest you leave this forum alone and go wank under a mango tree!!!

  25. Dauvavana Says:

    Megapipe leave the noble mango trees alone, Gandhooodhau should just go wank in gates pants………………no gates would love that……..he should go wank in chodo’s pants………….or maybe bainivuaka’s white naval pants bahahahaha

  26. Budhau Says:

    Megapipes,
    I completely agree with that “that events leading up to the actual takeover was in fact instigated by the Military and the hence the crisis which was the focal point of the judgment that existed was in fact being created by the usurper, not by the plaintiffs in this case.”

    What your above statement says is that there was a crisis and the President had to act and since the President did not have any explicit or implied powers under the constitution did he have reserve powers to deal with this crisis. The issue was whether there was a crisis or not – not who created the crisis.

    If the court was asked whether the action of the military was constitutional or not, the military seems to be saying that on the face of it there actions would seem unconstitutional, however, they would use the “Doctrine of Necessity” defense to justify their action. The other side would then argue that the necessity or the crises was created by the military, that they should not be entitled to that defense – and I think that is a legitimate argument. So, I agree that the military’s action was unconstitutional – but the court was not asked to decide that.

    Qarase’s team did not ask the question whether the military’s action was constitutional. All they asked was whether the President had the reserve powers to do what he did. For the court to answer that question, they do not have to decided on the constitutionality of the military’s action. The scope of this court case was very narrow – and that is mostly due to Qarase’s local attorneys who could not figure out what were they suing for.

    The existence or the absence of a crisis is a question of fact, whether the President had the reserve powers to act is a question of law. Some people would that legal tecnicalities do not matter – that the court should have ruled in favour of Qarase as a matter of public policy – since Qarase sued on a very technical question – the court could not have ruled any other way.

    As for the President’s decision – what choices did he have. The military had already taken over, he could either work with the military trying to work within the constitution, or let the military could abrogate the constitution and we have a full fledge military dictatorship – I do not think that keeping the Qarase government in power at this stage was one of the alternatives.

    Also, one has to understand that the court only decided on questions they are asked to decided on. Narsey raised some good points in his piece. Qarase’s lawyers should have raised those issues – sort of saying that here are some alternative questions to be answered.

    Some of you have an issue with the FB speech mentioned in the courts decision, and how come Qarase’s speech was not.
    FB speech is relevant – to show that the military was really in charge. Qarase’s speech, while a nice speech, is not relevant to the case – because it does not go towards proving of disproving whether a crisis existed or not, or whether the military was in complete control or not.

    Yes, Narsey made a good point – about the reappointment of the president – that is a good legal issue. Did the Qarase side bring that up, I don’t think so. Should the judges bring it up themselves, I don’t think its done like that.
    So here are some other questions that they should have sued for.
    Whether the Military’s action was constitutional – when they removed the democratically elected government. (I think it was not)
    Whether the reappointment of the President – after FB stepped into his shoes – was that constitutional. (I think not).

    Narsey, in his article mentions that some of the questions that he had raised may be resolved in the appeal. I don’t think so. If the issues were not raised in this case, I do not think many of those new matters can be raised on appeal in the Court of Appeal or the Supreme Court.

    I think there is some legal thing about alternative pleading – so here one could first argue that the president did not have the reserve powers and in the alternative argue that he was no longer the President once he was removed by the military.

    So you Magpipe,, it you who has screwed up reasoning – maybe due to the lack of an understanding of how these legal case work.

    Having said that, now I will leave this forum alone and go wank under a mango tree!!!…yes, right there, next to them Ratus from the GCC who are drinking homebrew.

  27. newsfiji Says:

    I wonder what the real objective is of the Monday meeting between the elected & other political leaders of Fiji and a self imposed Prime Minisda. Latest news from Fiji village is that bainimarama says if Qarase wants to talk about Electins in 2009 then he shouldn’t bother attending!

    Okay, then what is the point in meeting??

    Na ulukau ga na ulukau! It seems he’s already made up his mind…Bainipyjamas will use this opportunity to tell everybody off and ascertain that he is the “CHOSEN ONE” for Fiji and it’s people.

    No USE TALKING TO A FOOL COZ HE DON’T UNDERSTAND NOTHIN..

  28. F.I.R.M Says:

    Karan( Budhau)
    I very much admire your courage in coming here to voice your opinion ,this is a blog that doesnt support military coups in Fiji,we are the worlds leading anti coup organisation,and we know that you have been given directives to come, yes we have eyes and ears in the very organisation you represnt in Fiji, you are going to feel the wrath very soon..

  29. Trues Up Says:

    Good reading:

    FRAENKEL – Flawed Judgement
    23-Oct-2008

    I INTEND to talk mainly about the political and legal context of the Qarase Vs Bainimarama High Court ruling, and its consequences for Fiji, rather than principally about the legal details of the judgement itself. I’m speaking as a political scientist, as a long-time resident in Fiji (until 2007) and as an observer of that country’s contemporary political history.

    First, let me say something about the context of this recent judgement.

    The High Court judgement in Qarase Vs Bainimarama has come as a shock to many in Fiji.

    Despite some controversies associated with judicial reaction to the 2000 coup, people in Fiji had grown accustomed to the courts seeming to be largely independent of political influence, reasonably dependable and held in high public esteem.

    Indeed, an extraordinary veneration has come to exist for the rule of law in Fiji, paradoxically to a far greater degree than that respect which exists for constitutional democracy. After the failed George Speight putsch in May 2000, Fiji’s courts ruled the post-coup interim regime led by Laisenia Qarase to be illegal.

    First in the Lautoka High Court, presided over by the now acting Chief Justice Anthony Gates, and then in the Chandrika Prasad case before the Court of Appeal in 2001, judges found the 1997 Constitution intact and ordered a speedy return to democratic rule.

    By contrast, other parts of the world, such as Nigeria and Pakistan, have considerably greater familiarity with court judgements that have aimed to legitimise post-coup governments.

    The Fiji experience has also been unusual in another way. In the March 2001 Court of Appeal judgement, the court said ‘to its credit, the Interim Civilian Government in this case has adopted a very responsible stance’, making clear that ‘in the event of the 1997 Constitution being upheld by the courts, it would use its best endeavours to promote a return to constitutional legality’. This it did. In other parts of the world, regimes that arose in the aftermath of coups have been much more likely to defy such decisions from the courts.

    The 2001 Chandrika Prasad case was not the last of Fiji’s high profile court judgements regarding the constitutionality of the Qarase-led government. Following that case, interim Prime Minister Qarase proved able to win the consequent election, and form a majority government. But this too was found to be unconstitutional, on the grounds that it had failed to follow constitutional provisions requiring all parties with more than 10 per cent of seats to participate in Cabinet. Yet after a further election, in May 2006, returned Prime Minister Qarase, he formed a multi-party Cabinet that included leading members of the previously excluded Fiji Labour Party. It was a fraught arrangement, largely because FLP leader Mahendra Chaudhry preferred to remain outside cabinet, and the set-up was ultimately destroyed by the military coup of December 5th 2006. Nevertheless, this was the first time since independence that political leaders from Fiji’s two major political parties – the one representing the now 57 per cent ethnic Fijians and the other representing the 37 per cent Indo-Fijians – had attempted to cooperate together in cabinet. It was a promising if stillborn experiment.

    In other words, in the two major constitutional issues brought before the courts during 2000-2006, the courts in both cases found the Qarase government to be illegal. In both cases, the government eventually accepted the court’s verdict, and reconstructed itself accordingly. Yet now, when that government has been illegally ousted from office by the Fiji Military Forces and looks to the courts for protection, far from finding that usurpation of power and the subsequent presidential decrees to be unlawful, the courts instead have ruled in such a way as to legitimise the post-coup interim order.

    The High Court has found that ‘exceptional circumstances existed’, because ‘the stability of the State was endangered’, so the President was entitled to use certain ‘prerogative powers’ not provided for in the Constitution. No consideration is given to the fact that the source of that instability was the Commander of the RFMF himself, who as a result of the exercise of these prerogative powers was himself made Prime Minister.

    It is a deeply flawed judgement; one that is likely to have long-term negative repercussions for the respect in which the courts have been held in Fiji.

    Unfortunately, there can be little expectation that Fiji’s Court of Appeal or Supreme Court will reverse the High Court’s judgement. Fiji’s judiciary has been thoroughly reshaped since the 2006 coup.

    First, the Chief Justice Daniel Fatiaki was controversially ‘suspended’ in January 2007, and Justice Gates appointed as acting chief justice under circumstances widely interpreted to have been illegal. The President of the Court of Appeal, Gordon Ward, refused to accept renewal of appointment under the new order.

    His house in Pacific Harbour was burnt to the ground in suspicious circumstances. The six remaining expatriate judges on Fiji’s Court of Appeal resigned in September 2007, saying that it was apparent that their services were not wanted.

    Former Fiji Supreme Court judge, Robert French – now Chief Justice in Australia – writing in The Australian in May explained the reasons for his declining any renewal of appointment on the Supreme Court of Fiji, stating that to do so would entail an ‘implicit bargain’ with the interim Government and that ‘when faced with a challenge to the lawfulness of the government itself, such a judge could be seen to have a conflict of interest’ (The Australian, 2 May 2008). High Court judge, Justice Gerard Winter similarly decided, as he put it, that ‘I could not renew my warrant in 2008 if the military regime was still in power as to do so would run contrary to my original oath of office’.

    There are several other Australian judges, who took their commissions from an elected government, who are still sitting on the Supreme Court, but their appointments expire before the end of the year or in early 2009. Clearly, the extraordinary delay – from March to October 2008 – before the announcement of the verdict in Qarase Vs Bainimarama has contributed to the probability that these remaining judges will be unable to ever hear the Qarase Vs Bainimarama appeals, should these reach the Supreme Court.

    Those that sit on the benches of Fiji’s courts will, by then, be almost exclusively judges who have accepted appointments under the interim order, or local judges who may for obvious reasons find greater difficulty ruling in such a way as to contest the authority of the post-coup government.

    The right course for the deposed government is surely to appeal to the higher courts, but the likelihood of a satisfactory outcome – this side of a general election – seems slender.

    * To be Continued…

    The views expressed are the author’s and not the Fiji Daily Post.

    JON FRAENKE

  30. Tim Says:

    The whole bloody episode is like a Christmas pantomime, and it leaves Fiji open to the ridicule it is receiving already. Your initial summary says it all pretty much. It’s like a very selective application of law – at what point in the history of this coup (and others) dowe consider law to be legitimate.
    I continue to wonder why this diaper President is even considered legitimate in the overall scheme of things. The very point at which Frank (his Holyness), and arch bubba Yip Yip, and pistol shooting member of the sisterhood of Clairol, removed a legitmately elected government (which by all accounts reflected a will of the people despte some discrepancies – as occur elsewhere in the world) is the point at which everything else is open to interpretation.
    Gates and the rest of the fuckwits on the judiciary (whether through fear of retribution, or outed for whatever skeletons they’ve got stuck in their closets – and there are quite a few), are illegitimate.
    Despite Bubba, and Shaista, and Frank, and Sami, and anybody else that has hopped on thise pathetic little egotistically driven merri-go-round, ACTUALLY HAVE NO LEGITIMACY. It is all a fucking chirade for FUCK’S sake. Why does it take so long to get with the programme?
    There’s even some bitter and twisted multi-millionare transport mogel showering his “best mates” with vision an any other cargo cult treats and trinkets that appeal on the basis that he’s GENUINELY concerned.
    The guy is as big a fuckwit as is the next bloke!. Wealth gained by being in the right place at the right time- and he should seek pardon for his indicretions. (I am sure there are many lining up to pardon him as the dollars flow and the riches temporarily benefit)
    Frank, Sami, Shaista, Bubba, Nazi, and all their enterage of hangers on are incapable of seeinf the long term.
    And the judiciary are only capable of seeing their sort term safety.
    I wish you luck if you think you can place faith in any one of them.
    Pressie: – give the guy some dignity and shove him off to some honorary role as “Minister for Fijian Identity” or some other crap that makes him feel important (as he deals with his dementai)
    Gates: Round up a few bum boys who know where they’re at, and give the guy a thrill that is unrelated to law.
    Bubba: Make him the “Face of Fiji”. Present him in glorious technicolour every opportunity that you can.
    Shaista: Tell her that she have one or two East African kids without any of the bullshit that goes with adoption. Let her know too that they can all have Fijian “citizenship”. In her vision of the world and if she’s genuine, that should buy some real frequent flier miles.
    Nazi: Just realise that it is high time you actually lost your mad bitch sister and her hangers on for the sake of your own offspring. Might be too long before their welfare really has to be a consideration.
    Scutt, and all those others still coming to terms with their white guilt: slip on your dancing shoes, or face the wrath of what may yet come. I feel sure that none of you have the constitution or the guts to be matryrs, and nor did you ever have the belief in the principles you espouse to rank yourselves amongst those that realyy have.
    I’d actually love to meet some of tem some day – including that “silly bitch Shaista” … come t think of it, her protoge (albeit even when she gets pissed off with his outbursts she can’t control) Bubba.

    They are all fucking pathetic. They are all illegitimate.
    WHY are you guys even accepting their legitimacy? Why are we even making posts on blogs that assume they have some sort of power other than that gained by threat of violence?

  31. Tim Says:

    Excuse me if the above sounds like a bit of a rave, But, can someone tell me – at what point (in legal terms – post coup, and in light of the Constitution, OR any other means) did this coup or its junta gain any sort of legitimacy?
    There is none.
    They have none.
    They simply have control, and only by virtue of the fact that they have the potential to inflict bad shit on everyone.

    I’m afraid that if “Fiji” under it’s present regime, and by whatever means it wants to be defines (such as a nation-state) thinks this is the way the world should be, it has a shitload more thinking to do.

  32. groggy Says:

    Bula Budhau

    got nothing to say to your comments. But for Nailatikau sa laurai ga vei koya ni sega ni kawa vakaturaga. E dou tukuna ga o ira na qase e liu o keda ga na vakaraitaki keda ga na sega ni dua ena laga vucu taki iko.

    Qo sa ve kaburaka tiko o koya na kawa vakaturaga. Laurai sega ni dua nona tamata bloody luveni vasu. Keimami mai Kubuna e sega ni dou kau tale mai o ira sa soli tani me mai liu taki keimami. Sa cava sara ga vei nomudou na naitavi qori.

    O cei mada o koya me tarogi ira na turaga bale me ra vakamacala taka vvei koya cava era ceburaka na yacana ena ravisis na gauna e kau cake na yacana. Sa laurai ga e kea ni sega ni dokai.

    Dua na ka e da kilai levu na gone turaga kena marama bale na kawa taukei noda vei rokorokovi edau vakaraitaki ena vei gauna kecega veitalia sara e da sega ni dua vata e dua na ka. Na vakarokorokovi e dou caka. Sa laurai ga e ke ni sega ni dua e kilai koya.

    Sa sega mada ni cakava e dua na ka yaga nona tu na mataivalu vata kena gauna e lai noda ambassdor tu e UK. Qo na gauna e tu kina e dua na matanitu ceburaki sa gai sega ga ni dua na e cakava. Levu ga na cai vosa kena vakilakila laurai ga ni lala tiko na koro vakaturaga.

    E sebera ni oti na matani meke ese vo na kena matana me gai matata kina.

    sa vinaka

    Lawaki, Nairai

  33. Budhau Says:

    F.I.R.M or that person as SV Says:

    “Karan( Budhau)
    I very much admire your courage in coming here to voice your opinion ,this is a blog that doesnt support military coups in Fiji,we are the worlds leading anti coup organisation,and we know that you have been given directives to come, yes we have eyes and ears in the very organisation you represnt in Fiji, you are going to feel the wrath very soon..”

    Oh I get it – you wanna behave just like them goons that you complain about. Didn’t I tell you guys – that you are no different – make threats to stop someone.

    “the worlds leading anti-coup organization”…. yeah right.

    Hey BTW – why did pull those comments in response to that Kaisi-like behavior remark right after you posted it – did that make SV look bad or what.

    Bula Groggy.

    Tim – there is government in law and government in fact. The military regime is definitely a government in fact – regardless of what the law is.

    They, the IG crowd may want to believe that they are a government in law – because they seem to claiming that what they did while being unconstitutional on the face of it, was done as necessity, thus justified. While I do not buy that – the only way to call their bluff is to sue them on this issue – which the Qarase folks did not do.
    I believe that even this court will declare the acts of the military as unconstitutional. That does not mean that the Military would just hand over the power to Qarase. What will happen then is that the Military will be forced to do another coup and abrogate the constitution.

  34. IslandBoy Says:

    @Tim – believe me the rant is perfectly understandable. We all get so frustrated that sometimes it becomes diffiicult just to live here, its like you can’t inhale.

    But now the rant is over tell me what practical steps you would take if you lived and worked here and did NOT have:

    1. guns or any form of ammunition
    2. political power
    3. connections
    4. a voice heard in Fiji and by the outside world
    5. any way to get out of Fiji
    6. money
    7. a job
    8. too many choices
    9. a whole lot of formal education

    Working with these nine variables, what would you do, within the law, to alleviate the situation.

    I am serious here Tim because when you tell me I will pass it on to the majority of my relatives and friends who are in this situation and cannot see the light at the end of the tunnel.

    When you next step out on the streets of where you live, spare a thought for us trying to find our way out of this darkness and fighting every day just to stave off the feeling of hopelessness.

  35. natewaprince Says:

    Duana,sa dua na ka cai vosa e cakava tiko na kaidia magacici qo.Has something to say about everybodys comment,luveni kalavo qase.

  36. Peace Pipe Says:

    IB same here. I am getting so frustrated with this lot its making me feel negative about our situation in Fiji. I no longer watch tv or listen to the radio for news since its always full of these people and with all their negativities.

    Soon after cranky franky made the forum meeting announcement there was period of peaceful silence then he had to open his stinken mouth again and said those stupid things like he did.

  37. IslandBoy Says:

    @Peace Pipe – there must be hundreds more of us out there, I often feel like you say, but if we get tired or give up – they win.

    And I for one will not let them take our beatiful country and wreck it.

    Let me just share a couple of thoughts with you my friend, because I want to remind you, as bad as the political situation is here in Fiji, compared to other parts of the world, we are truly very lucky.

    This might sound to outsiders like we are praising oursleves, but for those of us who grew up here and have lived and worked in other parts of the world, you will know the truth of what I am about to say.

    I often see in the lives of the people who live in the rural areas and are only marginally involved in the formal economy, that their livelihoods are more sustainable and the quality of their lives much higher than those of us living in urban aresa depending on a salaried existence.

    Whenever I see pictures of starving refugees and children in places like Darfur, as bad as Fiji is with the current leadership, I always wish we could fly them all into our outer islands and rural areas.

    Count the fruit and vegetables that just grow wild without any effort, ota, duruka, mangos, kavika, guavas, papaya, bananas, tivoli, uto, coconuts, avacado pears, wi, well you get the idea, just name it.

    In addition if someone made just a little effort and planted crops, dalo, tavioka, bele, rourou, pineapple, cucumber, cabbage, tomatos, dhania, bhindi, bhaji and the list goes on even longer.

    If you live in a village by the sea, or near a stream, there is really no excuse to be malnourished, with all the different kinds of fish and whatever the English word is for vivili.

    Saying shellfish is insufficient because is does not include nama and lumi and cawaki, dairo, sea eels etc., only crabs, qari kuka, mana, prawns, lobsters, fresh water kai and kaikoso.

    Now take our water supply. If you travel to our nearest Pacific neighbours, Tonga, Samoa and Vanuatu you will realise how lucky we are with great quality water.

    When I heard about Wall Street and markets/banks crashing around the world, my first thought was that we might be able to buffer the effects because our land and coastal regions have the ability to feed and sustain the majority of our people in the rural areas.

    I bet you my last dollar, which I’m holding right now, that many of these Wall Street types, work like dogs and conduct shady dealings all their lives to be able to retire to a stretch of beach that we have so taken for granted because we grew up in these surroundings and have lived here for a very long time.

    This my friend is why we must strengthen our resolve and never let them take over what God gave us. All of us, no matter what race were blessed to be born here, we could have been born in some area of the world where there is extreme cold or desert heat, but we weren’t.

    We were placed here on these islands, and to me this is worth fighting for, so never ever give up.

  38. Megapipes Says:

    Budhau,

    Your argument now rests on the “prerogative” of the President. What should now be asked from you and the Gates Committee is why base their decision on an interpretation that will take us back to the colonial era when we had severed ties to the crown when we became a Republic. What you are supporting is the insinuation made by the GC that since there was no concrete evidence that the clause for reserved powers to the Monarch was not repealed or removed by the 1997 constitution, hence we can assume it is still effective supposedly in invisible ink? How fucked up is that? Barring the constitutionality of FB’s actions re sacking and then reinstating the Prez, the Prez himself should have been guided by the provisions of the Constitution that covers the declaration of an emergency and that declaration can only come from an elected parliament, not an interim cabinet!! But like a write in the FT yesterday said, this is a clear traversing of justice by GC especially by an Acting CJ that will stand to benefit from the decision if the affirmative goes to the defense. Yet you chose not also to see that. Reserved powers whatever the intentions maybe is supposed to be limited and under the curtailment of the provisions of the constitution. Otherwise, what we will have is an arbitrary government erected by disgruntled factions that can command the support of the armed forces and ultimately the Prez to ratify any illegalities. I hope you open your mind to the cycle of coups now ready to be continued under this judgment. As for your wanking saga, make sure you shoot your load into the homebrew bucket. Just make sure you are not gullible enuf to believe Eveli or Ului (who are also members of the HomeBrew team) that you should also drink it. Hell looking at your posts, u wud believe anything they throw at you.

  39. Budhau Says:

    Megapipes,
    Yes, in this case, my argument does rest on the “prerogative” powers of the President. The way things are set up under the constitution, the PM must still seek the “permission” of the President – such as dissolving the parliament etc – that is the same as seeking the permission of the sovereign. The President exercises these powers on the advice of the PM. However, in times of crisis the President can exercise the reserve powers.

    In this Fiji situation – we had a crisis and thus the President had to use the reserve power – power that was not explicitly provided in the constitution.

    You brought up our colonial past. In the UK, in theory the Queen still has the executive authority, even though it is the PM who actually implements it. You brought up the fact that we are a republic – the President legally has the same executive powers as the Monarch, and in Fiji’s case those powers under normal circumstances are exercised by the PM.

    The President, just like the British Monarch, is the nominal holder of those executive powers which include the reserve powers. In normal times, the President’s role may be ceremonial – but in times of emergencies, the President may fall back on the reserve powers – powers that are not clearly stated out in the constitution.

    Now do you get it – why they talk about sovereign, they also discuss sovereign powers in the US constitutional law – and they do not have a Monarch either.

    You also seem to be hung up on FB’s acts as unconstitutional. I agree, what FB did was unconstitutional; however, Qarase did not ask the court to declare FB’s action as unconstitutional. Qarase asked the court to determine if the President had the power to do what he did, and the Courts said yes he did – he had the reserve power to do so.

    Yes, the Fiji constitution is clear on how to declare a state of emergency. The crisis or emergency that was discussed in court was not about declaring a state of emergency. This discussion was about an actual emergency or crisis where the President had to act. If there was no crisis, the President may not use his reserve powers, if there is a crisis, use of the reserve powers is allowed.

    When you have a military that has overthrown a democratically elected government and has total control of the country – there is sure is crisis.

    ..and no Eveli or Ului are not members of the homebrew team – remember, FB told a group of Ratus from the GCC who were opposed to the regime to go sit under a Mango tree and drink homebrew – so I guess those two are not members of that team.

    BTW Even Leung in discussion mentioned that the Qarase people screwed up this case.

    Let me give you my two cents worth of some simple lay person’s non-legal advice that you can pass on to the Qarase boys.
    1) Their suit should be about the court declaring the action of FB and the military unconstitutional – not the action of the President
    2) Everyone, including Eveli, said that the military action was unconstitutional – most on the other side have explained it away as good public policy or better of the two evils etc.
    3) Once it is determined that their action was illegal, and no one has argued otherwise, the argument then comes to what defense does the military have.
    4) The military has to legally justify their action – that is where the affirmative defense of the “Doctrine of Necessity” comes in.
    5) The military has been talking about the “doctrine of necessity” from day one. The thing with such defense is that the burden of proof now shifts to the military to show that there was a necessity. This means that Qarase does not have to prove that there was no necessity, the military has to show that there was one.
    6) This is where you buggers can argue you heart out that since the necessity was created by the military, they cannot argue that defense – sort of like raising the self-defense issue in a criminal trial –
    Example: I kick NP in the nuts, he beats the shit out of me, I pull a knife and stab him. I then claim self-defense – not allowed, me creating the fight situation does not allow me to claim self-defense – and also the burden of proof is on me to prove that there was a self defense situation.

    So now you see how you can get the Military action declared unconstitutional – Now go get a few QC types and argue this out in court.

    This is not about whether you support the Coup or you support Qarase – these a technical legal arguments – and the Qarase’s local lawyers screwed up by not arguing more than the President’s powers.

    BTW – so what if you win, the court declares that the military’s action was unconstitutional – what next – the military will have to pull another coup, abrogate the constitution, set up a military junta and say bye-bye to an election for at least another five years.

  40. Fiji Forward Says:

    Natewa Prince the problem wih you is that you hail from a province of Criminals starting from your High Chief, jailbreak Naiqama.

  41. Isalei Says:

    Vosa tiko vakasama Fiji Backward! How about your criminal coup leader? At least Chief Naiqama has served his time, showing his courage of conviction. Even Speight has more guts than your cowardly precious vore the biggest sonovagun, looking around for somewhere to hide and seeking immunity from an old senile man. How low can one get? Sa oti o kemudou na Fiji military, sa boidada sara tu la qo! Dou lako tu sa sega na kemudou i divi. You have brought so low a once proud institution. Cause all the bright and smart ones have left, and only the korakoras left behind.

  42. Isalei Says:

    At least Big Chief Naiqama was never a murderer, unlike some people who are dragging this nation down to hide the crimes of 2000 and now 2006. Your sins will find you out vore! As for the stupid goons parading around in support, you will all be out of a job soon.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s


%d bloggers like this: