FRAENKEL – Flawed Judgement

FRAENKEL – Flawed Judgement
23-Oct-2008I 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.



17 Responses to “FRAENKEL – Flawed Judgement”

  1. newsfiji Says:

    Too good this article! He has summed up the truth beginning from the coup of 2000.

    After the ruling of the Chandrika Prasad case, the interim/caretaker government then speedily did everything in their power to call General Elections.

    Good on you Qarase, your honest fight will not end in vain.

  2. Ablaze Says:

    Ratu Mara and Qarase became Interim PMs in the Interim Govts, followed by Elections.

    These lunatics want us to accept charter first, give them all the time in world while their fill their pockets and then have elections.

    Please fight not to change the flag!

  3. Budhau Says:

    Hey Ablaze – now they are talking about the charter – wait till they do away with the constitution and then they will put a new constitution in place – just like Rabuka did.

    Newsfiji – after the Chandrika Prasad case – Qarase should have handed over the PM post back to Chaudary. They claim that Chaudary no longer had the support of the majority of the MPs because of the post coup split in the FLP – then they should have put a vote of no confidence in the Chaudary government – if the government was defeated, then there would be an election and in the meantime Chaudary should have remained the caretaker PM.

    And what did Qarase do?

    BTW – the coup in Chandrika Prasad case was a isolated law and order incident – of hostage taking confined to the parliament grounds. The Speight group were not in control of the country. They could have isolated the parliament building, continued to govern the country until the hostage situation was resolved. Once resolved, they should have put back the government of the day back in power.

    Compare that with the Bai coup – he was in total control of the country, the government of the day had been dismissed. Thus there was emergency or crisis that they keep talking about.

    This is how you distinguish the two – and why the same judge decided differently on this matter.

  4. Ablaze Says:

    @Budhau you obviously have not read my other comment – it is all about you and your mission!

    That is exactly what we are fighting for – never to allow your Regime to go down the Rabuka path.

    Never, ever, shall we allow anyone to get away with what Rabuka and Ratu Mara got away with.

    The only way they can change the constitution is for your leader to become a dicktator – like I said before it is not going to be too much fun dicktating to a few loving supporters like you. Bai will be this mighty big fish in a miminature pond. Hehehehe

  5. newsfiji Says:

    Budhau: if Qarase had handed back power to Chaudhary after the case then all hell would have broken loose again in Fiji. At the time all Fijians hated Chaudhary’s guts to the core – he probably would have been successfully assasinated. With all Chaudhary’s meddling in our land affairs – it was too soon. The Fijians had not forgotten why he was couped in the first place by George Speight. Believe me, i know i was part of that famous march.

  6. loma Says:

    Chaudhry did not want the government returned to the FLP. He refused the offer and made a sworn statement to this effect, filed his affidavit in the CCF challenge of Iloilo’s calling for fresh elections after the Chandrika ruling – this is part of the public record.

    So Budhau can bleat on and on about how power shoulda been returned to daddy0… but chaudhry preferred fresh elections. Why – because the FLP MPs voted to remove Chaudhry as party leader in favor of Dr. Tupeni Baba. What a surprise – chaudhry yet again showing his true colours.

    Not only that, Bainimarama told the court in his affidavit that he did not want to return power to the FLP because he could not guarantee the survival of a reconstituted FLP government.

  7. Cakau Says:

    This is how it is – I am afraid we are dealing with a madman. Even if we have Elections and Qarase’s SDL party wins, the madman says we are going to have another coup.

    The International communities will just have to take a tougher stance and an uprising in the camp. Come soilders it is yours in the taking – we know you are not all like your madman leader.

    Fiji PM warns against ‘past’ politics

    Former Fiji coup leader Sitiveni Rabuka, nationalist Iliesa Duvuloco and deposed PM Laisenia Qarase have been warned against bringing back politics of the past.

    Speaking to Fijilive, interim Prime Minister Commodore Voreqe Bainimarama said the three leaders should be ready for a new beginning in Fiji politics.

    “The actions of people like Rabuka, Qarase and Duvuloco brought us to where we are today,” he said.

    The three have been invited along with leaders of 13 other political parties for a meeting to set Fiji’s return to elections following Bainimarama’s 2006 coup.

    Rabuka welcomed the invite to his Soqosoqo Vakavulewa ni Taukei, saying they had a lot to offer “being the second longest serving Government” (7 years) behind Ratu Mara’s Alliance Party (17 years).

    However, Bainimarama said this was “irrelevant”.

    He also took a swipe at Duvuloco, who was jailed for his involvement in the 2000 civilian coup.

    “Duvuloco keeps harping about the Constitution yet in 2000 he shot the Constitution to bits!

    “This is the guy who was behind the events of 2000. I will not let Duvuloco, Qarase and Rabuka bring back the agenda of the last few years.

    “I hope they come to the Monday forum with the understanding that there will be a change in mindset.

    “If parties like the SDL are not forthcoming and still harping about the past then the meeting is not for them.

    “The meeting is called on the understanding that we will get together and propose a way forward.”

    Bainimarama said he woud not accept anything outside the bounds of the People’s Charter, which the military intends to be its exit strategy after the coup.

    “They (political party leaders) should come to me with proposals, not demands,” he said.

    “We decide what happens in this country!”


  8. Jean d'Ark Says:

    News Fiji!

    Actually, it was a double-edged hazard!

    On the one hand, Frank risked alienating more Fijians (not a good idea at that critical juncture), but more importantly on the other hand, he may well have lost control of the army too. This is why he signed the Muanikau Accord even though he detested it with every fibre of his being.

    So the risks back then were very real, as opposed to the nebulous and contrived risks alleged by Frank in 2006, and abetted again by the Gates ruling of 2008.

  9. Cakau Says:

    Another flawed judgement – Here is the Mr Leung’s interview.

    Pacific Beat Home | Pacific Beat – On the Mat

    Fiji government critics silenced says prominent lawyer
    Print Email
    Updated Wed Oct 22, 2008 5:20pm AEST

    More Fiji Stories:

    Commodore asks to meet Fiji’s politicians
    Children as young as 13 involved in sex trade
    Another Arson attack on Fiji’s Hindu Temples
    Prominent Fiji lawyer, Graham Leung, has spoken out about what he says is a climate of apprehension and revenge in his country, designed to silence critics of the interim government. Mr Leung says its the only explanation for a lack of legal analysis from within Fiji of the recent High Court decision legitimising the interim government, a decision which Mr Leung and a group of Australian legal and academic figures have strongly condemned. They were speaking at a gathering in Canberra which declared the High Court ruling to be perverse, bad law and an encouragement to the cycle of coups in Fiji.

    Canberra correspondent Linda Mottram

    President of the Fiji Law Society, Graham Leung. George Williams, from the University of New South wales. Constitutional lawyer Anthony Regan from the Australian National University.

    Listen: Windows Media
    MOTTRAM: Even as Fiji’s interim leader, Frank Bainimara, hoped to successfully bring opponents into discussions on the country’s political future, lawyer Graham Leung .. a former President of the Fiji Law Society and managing partner of Howards Lawyers in Suva .. was in Canberra issuing the strongest possible condemnation of the political climate in Fiji.

    LEUNG: “There is this climate of perhaps retribution and revenge to put it bluntly.”

    MOTTRAM: Mr Leung was one of four speakers at a panel discussion on this month’s Fiji High Court judgement which dismissed a case brought by ousted Fiji Prime Minister Laisenia Qarase against Commodore Bainimarama. In essence, the court legitimised the interim government. Mr Leung called it a bizarre ruling and questioned a lack of domestic critiquing of it.

    LEUNG: “When the Qarase decision was pronounced in open court on Thursday the 9th of October, the 10th of October being Fiji independence day, the Fiji media quoted the recently elected President of the Law Society saying that he was surprised by that decision and five days later i contacted him and asked him well aren’t you going to elaborate on that, surely its such a pronounced and significant decision whichever way you look at it, it calls for a more considered response, a more elaborate response. To this day I haven’t seen a larger statement from the law society. That tells me that there is a degree of timidity, there’s a sense out there that if you speak too much you might be penalised. How else can you explain that conspicuous silence against such a bizarre decision.”

    MOTTRAM: Mr Leung went on to say that he had personally been placed on a travel ban last year by the interim government and that the public service commission had issued an official circular saying his firm was to receive no government briefs or briefs from government commercial companies, pointing to this as evidence of the culture of retribution.

    Also speaking at the meeting was George Williams, from the University of New South wales. He’s considered one of Australia’s foremost constitutional lawyers and was counsel for the successful Chandrika Prasad appeal case in 2001.
    His assessment of the High Court’s judgement in the Qarase case was equally strong.

    WILLIAMS: “The reason nations like Fiji have a constitiution is to ensure that no power is unchecked, no power is unreviewable, and at all times democracy is ascendant in ensuring proper processes are followed. What we have in this decision, by contrast, is a decision that can be used in a virtually unlimited set of circumstances and in a way that I believe is fundamentally at odds with the most basic principles of the rule of law.”

    MOTTRAM: Constitutional lawyer Anthony Regan from the Australian National University agreed that this was a judgement to perpetuate the overthrow of governments in Fiji.

    REGAN: “This in the end is a judgement that permits coups and further permist coups to be clothed in legality. Its a judgement that prevents questioning of the president in the exercise of these unconstitutional powers and allows the possibility of manipulation. Its contrary to the words and the intent of the consititution and its based on a very colonial view of the law.”

    MOTTRAM: Listening to this strong criticism not only of the recent High Court ruling but also of the general political climate in Fiji was the country’s High Commissioner to Australia, Kamlesh Arya. He commented to the meeting that while the legal fraternity may be dismayed by the Qarase ruling, ordinary Fijians support Fiji’s President, not a view that garnered much support in the room.

    The last sentence I disgree with. Kamlesh Arya you would have say that so that you can enjoy the good life in a democratic country arsehole.

  10. Budhau Says:

    Ablaze wrote, “@Budhau you obviously have not read my other comment – it is all about you and your mission!”

    No honey, this ain’t about me, you or anyone else – though some of you buggers may think it is all about you – this is about Fiji, this is about democracy.

    Newsfiji wrote, “Budhau: if Qarase had handed back power to Chaudhary after the case then all hell would have broken loose again in Fiji. At the time all Fijians hated Chaudhary’s guts to the core..”

    Exactly my point, Newsfiji – that until you Fijians lean to accept a democratically elected Prime Minister, be it someone that you don’t like, don’t talk this democracy crap. Just accept the fact that you are pissed off because this coup was done by someone you do not approve – not that you love democracy. So if “at the time Fijians hated Chaudary..” what about now I bet they hate him more – what if he wins the next election – these same Fijians would again support the coup – and BTW – why did they hate Chaudary back then – that he kicked ass in a free and fair election.

    You see, it ain’t the Fijian people – it was the Ratus and the privileged elite who whip up this fear of Chaudary – because they want to protect their interest – I think the Fijian people would have accept Dr. Bavadra, Chaudary or anyone else as their PM if they will a election that is free and fair.

    IOMA wrote, “Chaudhry did not want the government returned to the FLP. He refused the offer and made a sworn statement to this effect, filed his affidavit in the CCF challenge of Iloilo’s calling for fresh elections after the Chandrika ruling – this is part of the public record.”

    No honey, you got you facts wrong – if they had handed the power back to the Chaudary government, Chaudary was all for it. What Qarase, the President and others were doing was to first try and see if Baba could become the PM or if they could set up a government of National Unity with the support of the opposition and the FLP breakaway faction. The reason for that, as my good friend Newsfiji stated above, was that the Fijian people were pissed off as hell with Chaudary and they won’t accept Chaudary’s return as PM. Under those circumstances, Chaudary agreed to an election – he made that decision under duress.

    BTW – it wasn’t “the Fijian people who were pissed off as hell”, it was this same crowd that wanted power back.

    So the underlying problem is that the Ratus and the privileged elite whip up this fear fear of the bogey man and then justify their coups and actions either as a indigenous rights issue or that Fijian people seem very “pissed off” when someone other than their choice becomes the PM – thus we have a crises and we have to work accordingly.

    So why are we then talking democracy if we will use the same reasoning to remove the next PM – unless he happens to be one approved by the Ratus and the elite. As for the Fijian people – they would be willing to accept anyone who is democratically elected – all the previous coups had nothing to do with indigenous rights – they were all power grab by the privileged few who were protecting their own interests.

  11. natewaprince Says:

    Baci cai vosa toka ga o Budboci. Frank can do what he pleases for as long as he pleases,but the people will still not accept it.And Chodo will be the first victim,no matter what his illegitamate son Bud says.

    BTW,does anyone know if Chodo still has his bociguards with him? He may have left the illegal regime but he is still a marked man.Bud ,stop trying to deflect attention from your papa and putting the blame on Qarase.Your daddy’s going down.

  12. Wini Says:

    Bula to fellow bloggers. On the issue of Kamlesh Arya in Canberra, fellow bloggers will not be aware that this fellow gave permission to a relative of his in Canberra who is leader of a predominantly Fiji-Indian Association in Canberra, to organise a fundraising function in the Fiji High Commission grounds. They charged $25 for a plate of roti and curry, the proceeds of which went back into the coffers of that Association ..Fiji taxpayers subsidised this function by footing cost of electricty etc. Hardly and indigenous Fijians attended the function….for reasons best known to themselves. Two ladies who mounted a protest in support of democracy outside the Fiji High Commssion grounds were verbally abused by the Acting Fiji High Commissioner in Canberra (Pundit Kamlesh Arya). So much for his (and the IG’s) commitment to democracy……

  13. Striker Says:

    Funny how a coup benefactor like Kamlesh Areasy can claim the President has the support of the common people. Sorry, but the people are more informed; they do not support an incapable President, especially one who had committed treason by authorising the pig’s coup.

  14. Peace Pipe Says:

    The behind-the-door conspiracy by the coupsters and their beneficiary cohorts are playing out before our very eyes and their cunning scheme is getting more apparent..

    Thats the reason the 3 stooges judges led by gay gaytes dragged their feet on delivering judgement earlier than they could have. Mainly its a cunning tactic to delay the judicial process to allow for the resignation of the existing sitting judges in the Supreme court. This will pave the way to the appointment of handpicked replacement judges who will support the present regime and then all the gates for fair justice will be forever closed..

    These are real cunning bastards in the ig who are manipulating events to produce the results they desire. So if they have all the powers under their control then what have we to defend and fight for our rights. Are we getting doomed or what.

  15. Striker Says:

    Peace Pipe: On the contrary, it is the IG that is doomed by the next coup now justified by puf gates & co.

  16. Adi Kaila Says:

    Hi Wini

    Did that arsehole really abuse the protesters outside the embassy? luveni kaisi! Talk about abuse of power. F’n lowlife.

    I hope all who paid $25 for a plate of roti and curry coka’d all night.

    Wini are you able to get the full story from those ladies that were abused by that piece of shit?

    Report mada mai gonei.

  17. Virapi Says:

    Adi Kaila…Yep I was there too with those ladies. (and they are my friends)..when that idiot shouted @ them by saying “if you want your democracy, go back to Fiji and you can get it through your ballot”…sa vakamadua, as all the diplomats were there as well!! No worries, that complaint was immediately lodged with the AFP, the following week…and to our advantage, an AFP was there too as a witness…

    And on the Panel discussion on Tuesday here in Canberra….that idiot was so ‘cepu’ as he was bombarded by the whole participants…esp from one of those ladies who were protesting @ the High Comm… Sa misi – calidi o koya!!

    In regards to the $25/plate, it wasnt worth a dime…there werent enough dalo…and guests were complaining about the bony chicken on their plates…
    OMG! the puree were even hard as rocks!!

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