FLS to join Qarase appeal

Yadra bloggers, well it is good that the FLS now seeks to be amicus curie in SDL’s Appealing the Gate’s decision. This would be good because the FLS also believes the judgement was bad law and it is in their interest to join the Appeal. Wonder what FHRC Shameem will do as she has always done the same in high profile cases and it seems FLS has stolen the show from her this round. Have a nice weekend and we have more of the mental capacity of President Iloilo within the next few days.

Sunday, October 26, 2008

THE Fiji Law Society wants to be the amicus curie if the ousted prime minister Laisenia Qarase appeals his case in the Fiji Court of Appeal.

FLS president Dorsami Naidu, who supported the calls that the recent High Court decision legalising the 2006 coup would undermine the rule of law, weaken parliamentary democracy and parliamentary institutions rather than strengthen them, said they wanted to be involved in the appeal.

He was responding to statements made by Suva solicitor and former FLS president Graham Leung. Mr Leung joined panellists in Australia and expressed grave concern about the long-term ramifications of the High Court declision.

The panelists concurred this week at the National Australian University that the Fiji High Court erred in law in interpreting the President’s prerogative powers as superseding the Constitution of Fiji. Mr Leung also criticised the ousted Soqosoqo Duavata ni Lewenivanua party’s response to its predicament upon its removal from Government and power.

“It has made some serious strategic blunders and now finds itself on the back foot. There has been much complacency and now they are surprised that they have come out the losers”. The stakes going in to the Qarase vs Bainimarama court case were huge and the SDL underestimated this, he said.

“Now they have to live with the consequences. And it is hurting them. More importantly, it is hurting Fiji. It is hard to say how much more bruising body blows the Constitution can put up with”, Mr Leung said. Mr Qarase said they hoped to lodge their appeal before the end of the month but declined to comment on the issues raised by Mr Leung.

He added that they would be looking for a new Queen’s Counsel as Nye Perram had been appointed judge to the Federal Courts of Australia. But Nationalist Tako Lavo Party leader Iliesa Duvuloco said the fight was not over yet as the SDL would appeal their case and that everyone hoped justice would one day prevail.

24 Responses to “FLS to join Qarase appeal”

  1. newsfiji Says:

    Hip Hip Hooray! I shall have a Fiji Gold today to celebrate this great news!

    SV: I’d really like to see your update on the President’s mental capacity! Interesting..interesting..

  2. Talei Tabusoro Says:

    Hey newsfiji hanks for the belly aching laughs next door!
    SV thanks for putting me on.
    Thanks MM for feeding the FT thread on the same ; well sort of.

    Suggestion to LQ is to remove Teviata Fa and hire Jon Apted.
    Thank you FLS for coming to the aide of the people.
    SDL represents the people until they are voted out.
    Any movement in the direction to restore the people by the Fiji Law Society and the community at large for that matter is commendable.
    That includes the bloggers on SV and all her sister affiliates to the right of this front page.

  3. Truth Says:

    Yes very nice indeed to see Fiji Law Society coming to the fold. Good job guys.

  4. newsfiji Says:

    Folks…am watching Viti Nikua on FIJI TV…Sakiusa Bolaira in between Neumi Leweni & Peceli Kinivuwai…

    Oilei, and they’ve opened the lines for questions!

  5. Budhau Says:

    Guy, I posted this in another thread in response to Megapipes – however, this is relevant in here also.

    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 do not qualify to be on the homebrew team.

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

    Let me give some simple 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 that 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 non 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 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 then the President’s powers.

  6. newsfiji Says:

    It’s unbelievable that Fiji TV is taking calls from people who support the interim military regime..

  7. Truth Says:

    And what if they get calls from overseas @newsfiji

  8. Truth Says:

    Give the number here. Where do people call.

  9. newsfiji Says:

    Sorry truth…the show was only half an hour…Kinivuwai & Leweni were civil and both seemed in agreement in the objective of finding a way forward for Fiji.

    The irritating thing was that Sakiusa (the host) announced only once (beginning of the program) the number we could call…they didn’t bother to leave it on the screen like they usually do…

    It was just pathetic that every single caller was in support of Bainimarama’s military regime…

    Their was only one caller who asked “this question is directed to Major Leweni, Since you overthrew the government, can’t you guys just run it yourselves…why now do you ask for a political dialogue forum…what seems to be the matter?”…to this, Sakiusa announces that they will go for a break and will address the question after the break….well, to no ones surprise, after the break the question was not answered…was really irritating coz i’m sure a lot of people had wanted to know the answer to that question…

  10. Truth Says:

    Oso. Sa vakaninivaki a rogoca lawaki ca Me va ka sara ga ko keta gone lalai. I don’t know what kind of media freedom fijilive is reporting because this is a prime example Fiji hasn’t inched forward at all.

  11. Mark Manning Says:

    It’s great to hear , but is it too little too late ? Or rather , it is , too little too late !
    So I’ve turned the question into a statement by turning the ” is it ” with ” it is ” and an exclamation mark !
    Why weren’t the FLS behind the elected Prime Minister from the beginning ?
    It’s only now , as they , the FLS and Chaudhry , find themselves living in the same boat with this Regime and the Commander / Commodore / Interim Prime Minister / Vice President / Paramount Chief Frank in Pyjamas , that they have decided to take action . It’s a little pathetic really and they are no better than the pathetic soldiers who have broken their oath to protect Fijian citizens .
    In fact , is says little or a lot about the calibre of the Legal Profession in Fiji .
    I doubt there’s a man of honour amongst any of them now ! Like many , though not all , Police and Soldiers , they have sold their soul to the devil and brought a curse upon their own families , their Children and their Children’s Children , as it will take 30 years to recover from this latest treasonous act . The spread of AIDS and other sexually transmitted disease is on the increase as is poverty , some 34% now or higher , the almost legalising of child prostitution organised amongst hotel staff , bouncers , taxi drivers and Police is unchecked and on the increase , all for a buck !
    Thank God I don’t have one of your Lawyers or Judges representing me in Court !
    Instead of criticising the President , perhaps you should all be praying for him .
    I’m not sure what his medical condition is , but if it is Alzheimer’s disease , then he is dying already .
    I shudder to think what the good Lord has in store for Frank and Co. given the way they have taken advantage of this man’s condition and the way they have exploited him .
    It is Frank who will feel the wroth of his maker unless he changes his ways .
    He and his followers , cannot escape their maker .
    http://www.alz.org/alzheimers_disease_what_is_alzheimers.asp
    Talei , your welcome .

  12. EnufDictatorship Says:

    Hip hip hooray indeed!!!

    But like all of us seem to wonder…why did it take them until this time to react? What were they waiting for? A time bomb? Jeezzzzzzz……

    Newat, here is where we are now, so, let’s keep the hope and faith that true justice will prevail and those who have caused us our miseries will be get their payment according to His will…Inshallah!!!!!

    A blessed Sunday all!

  13. FijiGirl Says:

    Agree with Talei Tabusoro, SDL has to ditch Fa (and Q.Bale) and hire the best lawyers who can think critically, act strategically and give them the bad news as well as the good.

    SDL has to stop being comfortable with lawyers who tell them what they want to hear and start seeking out people who will give them the truth with both barrels.

    LQ was good at taking opposing viewpoints when he was in the PM’s seat (and he IS a darn fine PM) but he seems to have lost his edge since the coup and his exile in Lau.

    Let’s hope this support from FLS (who seem at last to have found their teeth) will reinspire him to take up the fight.

    Tabu soro
    God bless Fiji

  14. amazon Says:

    Hey newsfiji, hope u’re still watching box, some of my favourite gals on TV : Tupou Draunidalo and Adi Ema Tagicakibau on Close Up show with moderator Sophie Foster. Go gals, say it like it is!

  15. benhur Says:

    Buda–huuuu, man you are smart. You mean to tell me that the two QC lawyers from Australia-who have recently been appointed federal judges of the Australian high court were wrong in presenting & defending the Qarase case? You are one smart whore!!!! We the patient readers on this esteemed blog site- herewith conferred upon you the honourable degree of boi-da-da–Buda–huuu.
    May the lord bless Fiji!

  16. amazon Says:

    Better be called a smart whore than BE a ‘dumb himbo’ aye Budhau?

  17. newsfiji Says:

    Wailei Budhau: Au kerekere mo lako mada lai vuli vakaoti vata kei nomu idol of Voreqe!

  18. Budhau Says:

    Benhur wrote, “Buda–huuuu, man you are smart. You mean to tell me that the two QC lawyers from Australia-who have recently been appointed federal judges of the Australian high court were wrong in presenting & defending the Qarase case?”

    Benhur, you are such a dumbass.

    It is not those QC dudes who screwed – Qarase has always been associated with incompetent local crowd – and they are the ones who screwed up.

    When your local boys fcuked up – your QC shows up expecting that the ground work had already done and opens the case. This is when Qarase’s team filed some different documents which your local boys had failed to file. Of course the lawyers for the defense protested when they saw that the new document contained material allegations of facts not referred in the opening. (procedural matter – but as important as substantive law)

    The court observed that “It appeared that the legal basis of the plaintiffs’ claim had not been worked out. This was not Mr Perram’s fault, but rather those who in reality had carriage of the plaintiffs’ case.”

    So Benhur, you dumbass – if you do not file the right papers, the scope of case becomes very limited – and there is very little those QC dudes could have done.

    Now that I have dealt with your smartass remarks – why don’t you idiots try and see the light.

    BTW – the appeal will only deal with the issue raised in the lower court – so it does not matter who the judges are and who joins on Qarase’s side – they will still have an uphill battle overturning this decision.

    Now you idiots read what the court said – “It is important to mark at the outset that the court has not been asked to canvass the validity of any possible reasons which might excuse the military takeover. In his opening remarks Mr McCoy QC conceded the court was not concerned with whether there was moral, military or philosophical imperative for such action. Nor has the doctrine of necessity for a coup d’etat figured as a matter of dispute between the parties.”

    Hey Benhur – read the above, and when you figure out what it means – then shut up.

    Go read my post above – what I wrote about the who we should have sued and for what.

    Sue FB – that his acts were unconstitutional, not the President – no one has yet argued that FB’s acts were constitutional.

    What the FB crowd have been talking about is the Doctrine of Necessity.
    When one claims the “necessity” defense, the burden of proof is on him to prove that there was necessity.

    You buggers then can argue the fact that FB created the crisis thus he can not claim the necessity defense.

    With no necessity defense – FB does not have a case. (The necessity defense is very similar to a self defense claim in a criminal matter – you can’t claim self defense if you started the fight – with few exceptions)

    You don’t need a QC to figure that out – with a decision in Qarase’s favour – Qarase boy will have a moral victory, the court can not redress this – because FB, right after the court comes out with a decision against him will pull another coup, abrogate the constitution and no more election for another five years.

    Benhur – Here, I teach you how to do this.
    First you write down the issue – start that with the word “whether” – whether FB’s action was constitutional.

    Next you write down the rule – The rule being that “necessity” defense does not apply to a person who is himself responsible for creating the crisis.

    Third sentence – you start with the word “here” – here, FB created the crisis – and do an analysis – state all the facts that you buggers have been saying in here for months.

    Next you do your conclusion starting with the word “Therefore”
    Therefore, FB cannot claim the necessity defense.

    Now, go ahead Benhur – you can write this up for Qarase’s local lawyers – in four paragraphs – and this is basically what this case is all about.

    Simple – right?

  19. amazon Says:

    Lol @ Budhau – gotta hand it to you buddy, you absolutely hve the patience of Job, the Christian saint, to painstakingly explain yr views to everyone who attacks you here. There’s certainly a prize for that kind of tenacity u’ve shown, what say ben hur? Much like what we, the rest of us bloggers hve shown via hanging around SV for the last 23 months🙂

    Blog on buddy!

  20. newsfiji Says:

    Budhau…qare o iko mo lai sosomi taki Anthony Gates! Congrats boy!

  21. manasa Says:

    PARENTS of a secondary school are up in arms after a Methodist church minister and a school teacher allegedly punched a student to discipline him.

    Bloody kaicolo- Civilization gone past!!!

  22. Isalei Says:

    Just aping their bros up in the camp no doubt!

  23. benhur Says:

    Buda-h-u-u- you still one smart macafaka?

  24. George of Sydney Says:

    Budhau, I dont really know how competent you are in the area of law, but the recent stand showed by the Fiji Law Society that the 3 judges in the Qarase/Bainimarama case were wrong in their judgement. This legai organisation is made up of nearly all experience legal eagles in the country and if that is their stand on the judgement than there must be a lot of truth in it.
    Now you take your unqualified opinion and flush it down with yourself

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