Victor Lal on creative, misuse of Presidential prerogative powers – Part 1

Qarase’s ‘internal exile’ to Mavana and the search for presidential prerogative power

 

10/1/2008 Fiji Sun

In the days leading up to the 5 December 2006 coup the cat and mouse chase forced Laisenia Qarase, at the time the duly elected Prime Minister of Fiji, to finally flee to the safety of his home in Mavana in Vanuabalavu. He remained there and only returned to Suva to prepare for his court case against his deposers.

 

 

The question that the recent High Court judgment did not address, and I accept that it was not asked to consider, was whether the military, in confining Qarase to Mavana, was acting on the supposed and invisible “reserve powers” vested in the President, Ratu Josefa Iloilo.

And if the military was acting on the “reserve powers”, where did the military, through the President, get that power to confine the deposed Prime Minister in Mavana?

In a series of articles I will be arguing, based on the availability of new evidence as contained in the various court affidavits and other reliable sources, that the President’s constitutional powers ended the moment he allowed Commodore Frank Bainimarama to “step into his shoes” and all acts performed by the military afterwards in the President’s name, with or without his consent and blessing, has no basis in constitutional law.

In fact, the President did not have the reserve powers to perform the series of acts in the manner he did following the 2006 coup.

During the run up to the coup, I was under the impression that he was a neutral arbiter but evidence suggests to the contrary, especially his address to the nation: “In any case, given the circumstances I would have done exactly what the Commander of the RFMF Josaisa Voreqe Bainimarama did since it was necessary to do so at that time.”

As a result, I am departing from my own earlier arguments, which were previously based on skeleton evidence available to us.

Meanwhile, I disagree with the interim Attorney-General Aiyaz Sayed-Khaiyum’s warning to the media that he would not tolerate any contempt of court and comments on the recent judgment and anybody bringing the judiciary or the administration of justice into contempt will be called to account for their actions. I presume he knows better as a student of law that the conduct of the judges and their judgements are open to scrutiny once a judgement has been delivered by a court: In Attorney General v Butterworth [1963] 1 Q.B. 696 it was held that at common law, “a contempt of court is an act or omission calculated to interfere with the due administration of justice.” He must remember that the High Court has already delivered its verdict.

His constant threats to the media only re-enforce “the all-too-common tendency to view the attorney-general and his department as no more than the law firm that is always on call to serve the interest of the political party that is in power at the time”.

The A-G, despite his political role, and as supporter and adviser to the government, is meant to wear an apolitical hat in his parens patriae role as guardian of the public interest. The judiciary and the media are also guardians of the public interest.

In his fifth edition of Media Law (2008) Geoffrey Robertson QC, who successfully argued the Chandrika Prasad case before Justice Gates, writes on the issue of scandalising the court: “Scandalising the court was invented in the eighteenth century to punish radical critics of the establishment, such as John Wilkes [In the context of 18th century politics it was an attempt to protect Lord Mansfield from reasoned criticism of his oppressive judicial behaviour towards Wilkes and other critics of the Government].

Despite its apparent breadth, scandalising the court should not prevent criticism of the judiciary even when expressed in strong terms. “Justice is not a cloistered virtue” a senior Law Lord (Lord Atkin, Ambard v Att-Gen for Trinidad and Tobago, 1936), once said, and comment about the legal system in general or the handling of particular cases once they are over sometimes deserves to be trenchant… Scandalising the court is an anachronistic form of contempt.

Lord Diplock (Secretary of State for Defence v Guardian Newspapers Ltd (1985) has described it as “virtually obsolescent in the United Kingdom” and it has not been used here for 60 years.”

In their ruling in Qarase and Others v Bainimarama and Others, the three judges, acting Chief Justice Anthony Gates and Justices John Bryne and Davendra Pathik barely touched on Qarase’s enforced confinement on Mavava, but noted: “In his pleadings Mr Qarase stated, ‘The next morning the Prime Minister escaped from Suva’. The defendants claim he left Suva that day, 6th December 2006, only to return to Suva on 4 October 2007.

In his evidence Mr Qarase said he returned on 1 September 2007.”

I must confess that academic lawyers (and practising lawyers and judges) not familiar with the events of 5 December 2006 will not be a position to do a thorough and just critique of the High Court judgment because Qarase’s legal arguments are woefully absent in the judgment.

Also, unlike Qarase who agreed to testify, both the President Ratu Josefa and Bainimarama (who flew all the way to New York to explain his actions to the UN General Assembly), chose not to appear before the High Court and to be cross-examined about their roles in the events prior to, during, and after the 2006 coup.

According to Qarase’s affidavit to the High Court of 24 September 2007, the following chain of events occurred: (1) That since 6 December 2006, my freedom of movement was confined to my home island of Vanuabalavu in the Lau Group. My wish to return to Suva was prevented by threats against my safety and liberty regularly announced publicly by the First (Bainimarama) and Second (RFMF) Defendants in the local media. The only airline that services my island, Air Fiji, was reluctant to transport me out of Vanuabalavu for fear of Military reprisals. On 4 January, 2007 I received a telephone call from a person who identified himself as a Major Sitiveni Qilio in the Second Defendant warning me that I would be arrested by the Second Defendant, if I returned to Suva.

(2) That my application to this Court, through my lawyer, for orders to direct the First and Second Defendants not to impose restrictions on my freedom of movement guaranteed under the Constitution was opposed by the First and Second Defendants, and I crave leave to refer to their affidavit thereon sworn by one Major Sitiveni Tukaituraga Qiliho on 2.5.07, but this Honourable Court granted that order on 11.6.07, and I crave leave to refer to the said order.

(3) That despite the order of this Court described in paragraph 5 herein, and despite the fact that there was no state of emergency then existing, and despite the fact that there was no other legal restriction imposed upon me, the Chief Executive Officer of Air Fiji informed me by telephone on 28.8.07 that his airline was unable to transport me to Suva by a chartered flight on 29.8.07 as planned, because Air Fiji was warned by the Second Defendant not to transport me from Vanuabalavu.

There was wide local and international publicity about and condemnation of these continuing efforts by the Second Defendant to restrict my freedom of movement, in particular regarding my return to Suva to help prepare for my case.

I can understand why the Chief Executive of Air Fiji has denied his telephone confirmation to me that he was instructed by the Second Defendant not to transport me to Suva.

I was to charter one of their aircraft, and his Company needed the business, and this made his initial confirmation about his inability to transport me to Suva more credible, i.e. out of fear of possible military reprisals.

(3) That I also received a phone call on 28.8.07, in which a person who identified himself as calling from the Fiji Military Forces Camp threatened that I would be killed on arrival, if I returned to Suva.

The First and Second Defendants have denied and continue to deny any role in restricting my freedom of movement and the threats against my safety and liberty conveyed to me by telephone.

Strangely, coincidentally, Fiji Air’s reluctance to accept our request to charter one of their aircraft to transport me to Suva was refused on the same day.

I sincerely believe that the Second Defendants have had difficulty not only in denying that these events did take place, but more importantly in denying that they knew.

Moreover, the silent majority of the public of Fiji are familiar with this tactic of denials by the First and Second Defendants about their regime of violations of human rights since 5th December, 2006.

(4) That as a result of these difficulties, I did not manage to return to Suva by chartered flight until 1.9.07.

However, immediately before and since returning to Suva, incidents which continue to demonstrate the Second Defendant’s determined effort to restrict my freedom of movement, freedom of expression, freedom of association, and other human rights principles enshrined in the Constitution.”

In its judgment the High Court relied on the invisible powers of the English kings on the question of prerogative in sanctioning the President’s actions.

But we might want to recall that in the Magna Carta there is a ringing expression of freedom for mankind in the world over: “No free man shall be taken or imprisoned or deprived or outlawed or exiled or in any way ruined, nor will we go or send against him, except by the lawful judgments of his peers or by the law of the land. To no one will we sell, to no one will we deny or delay right or justice.”

TO BE CONTINUED…

 

Victor Lal read law and international relations and politics at the University of Oxford and specialises in race, politics, conflict and constitutionalism in deeply divided states.

He is the author of Fiji: Coups in Paradise – Race, Politics and Military Intervention, and is co-winner with Russell Hunter of the 2008 Robert Keith-Reid Award for Outstanding Journalism. E-mail: vloxford@gmail.com

 

30 Responses to “Victor Lal on creative, misuse of Presidential prerogative powers – Part 1”

  1. benhur Says:

    Since independence i think that the only time Fijians felt any progress was when Rabuka came to power and during the 6 years Qarase administration. During the Maras’ years, you’d have to be an Indo or high chiefs’ kids, to benefit from any Government programs.
    Rabuka started all kind of programs aimed to upgrade the Fijian “lewenivanua” in foreign higher education and in business etc.
    Qarase upon being elected, appears to accelerate this Rabuka process, but he was weak in the leadership areas.
    Rabuka wouldn’t have allowed Voreqe to blindside him and he would have got Voreqe out, way before Voreqe, could scramble down the Tavioka patch?
    Don’t get me wrong I’m not trying to defend Rabuka and his coup. But what I’m saying that he was a strong leader, act like one, till after he mellowed and did the right thing by laying down the foundation of his vision, for Qarase or another Fijian leaders, to follow?
    Qarase was way too laid-back and indecisive as a national leader.I had bombarded him with emails,letters and faxes, since the first year of his administration, asking him to take out Voreqe?
    I continue to send him email till Voreqe went through with his threats and kicked his a-s-s to Mavana.
    Who knows, if he had acted decisively the minute his Government and democracy was threatened by his Military commander, our rights and freedoms may have been protected.
    I for one thinks that we need to pick a no non-sense leader for our next PM and Qarase should really bow out gracefully and let other carry the baton to the finishing line.

  2. Fiji Forward Says:

    Brother you sound so familiar but then why bother going back to Rabuka years, you must have been in his Govt to support him now!!! Rt Mara is what Fiji is today!!, LQ did nothing to move Fiji forward and brought his own demise upon himself. One perfect example is the Suva – Nadi Highway and Monasavu Dam, who did both those significant things in our country?? Rt Mara!! the man did it for all of us!! Kai Viti, Kai dia, Kai China, you name it. What have the other two done?? totally nothing, not even for their own provinces, Lau and Cakaudrove got even poorer when LQ and Rambo were in power. So tell me another story brother because its sounding more like a broken record player. Victor Lal, I have nothing against the man but he talks crap, simple as that, utter rubbish.

  3. amazon Says:

    @Fiji Forward & Ben Hur – Gentlemen, you both raise valid points but you’re both still way off the mark. What has been the common denominator in all 4 coups this sorry country has been thru?

    So who gives a flying hoot about who did what, which province got more money, infrastructure than the other, which ethnic group outsmarted the other. In other words, this is not the time to be pointing our fingers all over the place or at each other

    WE ARE WHERE WE ARE gentlemen…. our country is completely screwed up bigtime… and many argue has been screwed over since 1987.

    So everyone may have equally fcuked up!! And what we need to do know is to listen to one another, admit our weaknesses, failures, the failures of our past leaders etc and try to resolve our issues and differences which can only be achieved within a ‘genuine’ democratic framework that respects and upholds the rule of law.

    And so for you ForwardFiji – if you don’t like Victor Lal, who cares? I like him plus I’m a big fan of his too and that counts right? If you don’t agree with his arguments posted here by SV, then why are you screaming at us – just simply refute it… and oh boy, you have one hell of a job on your hands trying to persuade me!

    Otherwise, don’t ask anyone to believe you over VL when you’re hopping mad, pointing fingers all over the place. Gosh, you sound like you’re already dancing in a boxing ring. Tsk…tsk…just take a deep breathe and calm down.

  4. at least Says:

    Good one Amazon..I may say amazing…..

  5. FijiGirl Says:

    Agreed, Amazon – VL backs up his expose with facts and intelligent reasoning and is well worth listening to.

    Most of VL’s critics mouth off with knee-jerk responses typical of those not accustomed to deep thought or articulating considered opinions, in other words, those who are used to taking orders and not questioning them.

    Keep ’em coming, Professor Lal. Hang the malodorous Chodokant high, where we can all watch him swing and squirm.

    God bless Fiji

  6. soro Says:

    FF – u sound like Ului-kobo ranting and raving from the camp. Get a life mate !

    LQ is a gentle man with high morals and decency who liked to do things by the letter of the law … it may be that it is unfortunate for him in the political arena that he has no Micheavellian virtues (like those displayed by Jim Sir-na-dena Ahkoy) , but you have no right to condemn him on hear-say…… show us the proof rambo!

  7. freedomfighter Says:

    MONDAY NOVEMBER 3, 2008 FIIJI SUN
    Pages 7, 10 and 11
    By VICTOR LAL
    Bainimarama was
    due to be arrested:
    Deposed minister

  8. ex Fiji Tourist Says:

    Yes freedomfighter, it is a great read in The Sun today.

    I hope injustice gates reads it and works out how biased his misjudgement is.

  9. Striker Says:

    When justice is turned to injustice by the Courts, what hope does a society have except of the people taking the law into their own hands?

  10. Corruption Fighter Says:

    Apart from meticulously documenting the thuggish tactics of Bainimarama and his officers to put so much fear into Qarase and his family to the point the ousted Prime Minister was effectively sentenced to internal exile, Victor Lal pinpoints the main flaw in the judgment by Gates. This was the way in which Gates relied so heavily on the “invisible powers” of ancient English kings as his legal precedent to justify the prerogative in sanctioning the President’s actions.

    When you understand that it is not difficult to see the Gates judgment as being nothing short of an exercise in pure colonialism. And to try and pull off that sort of stunt in a country that has been a republic and therefore independent of the British crown for more than a generation only shows how desperate the High Court was to put its totally counterfeit seal of approval on the treasonous actions of the dictator and his motley crew.

    I say that this is not over by a long shot and the only way for the supporters of democracy to get on top of it is to keep up the pressure. Victor Lal has done freedom and democracy an invaluable service in his exposure of Chaudhry and now he has embarked on this analysis of how a kangaroo court works. The Fiji Sun and SV should be congratulated for running his articles. The only way to beat Bainimarama and his compliant stooges like Gates is to keep hanging them out in the bright glare of the public gaze, where others can see them for what they are and where the world can make an informed judgment of their criminality.

  11. Budhau Says:

    Victor Lal on Interim Attorney General,

    “I presume he knows better as a student of law that the conduct of the judges and their judgments are open to scrutiny once a judgment has been delivered by a court: In Attorney General v Butterworth [1963] 1 Q.B. 696 it was held that at common law, “a contempt of court is an act or omission calculated to interfere with the due administration of justice.” He must remember that the High Court has already delivered its verdict.”

    Hey Victor, the IA-G’s position was not that the conduct of the judges and their judgment are not open to scrutiny once the judgment has been delivered by a court.

    We all know that fair criticism is always permissible and that no one shall be found guilty of contempt of court for making fair comment on the merit of the case that has been heard and decided.

    What the IA-G was dealing with was that some criticism may not have been fair and the criticism of the judgment was actually personal criticism of the judges and that is not impermissible.

    Once they had started questioning the motives of the judges that is when you get in the area of contempt – trying to get the public to question and not trust the administration of justice as a whole.

    Lal is well aware of the convention that judges do not defend their decisions in public and that if people disrespect the judges laying down the law, they cannot be expected to respect the law laid down by judges. So Lal, do you see how the above would “interfere with the due administration of justice” as pointed out by you in Attorney General v Butterworth [1963] 1 Q.B. 696

    Lal and others should look at the strength of the reasoning in the decision itself and of course, that is open to criticism.

    So, Mr Ph.D, do you see why you were wrong in criticizing the Interim Attorney-general in the manner that you did. .

    Victor Lal wrote “During the run up to the coup, I was under the impression that he was a neutral arbiter but evidence suggests to the contrary, especially his address to the nation: “In any case, given the circumstances I would have done exactly what the Commander of the RFMF Josaisa Voreqe Bainimarama did since it was necessary to do so at that time.”

    Once again Lal seems to have missed the point.
    If the President remained in office throughout that period when Bainimarama supposedly “stepped into his shoes” then all actions of Bainimarama must be ratified by the President
    Thus, the President by ratifying the acts of Bainimarama in dismissing the Prime Minister, the Cabinet and the dissolution of Parliament got the country out of that legal limbo.
    The President, when faced with the crisis, felt that it was necessary to do what he did at that time.
    His action however does not necessarily show that he was not neutral on this matter prior to the coup – Lal’s reasoning is a bit of stretch.

    I could take almost all of Lal’s arguments in here and do a break down exactly like I did above – ain’t worth the time or the effort.

    BTW, SV, can’t you folks find someone better who is your in-house counsel.

  12. soro Says:

    Warai sa cawiri mai na bush curry lawyer …. next !

  13. Budhau Says:

    Soro that “bush curry lawyer” remark – come on guy, you should not be calling Victor Lal names – so what if happens to be an Indian.

  14. ispy Says:

    Budhau, what a load of hogwash.

    You dont have to be lawyer to see the the judgment was fundamentally flawed in that the judges who heard the case were all apointed by the very authority whose legality was being called into question in the Qarase case.

    To rule in favour of Qarase would to be convict themselves at illegal appointees (ie. taking unlawful oath).

    Thus their moral character as lawyers and as judges is exactly what is in question here.

    They opened themsleves up to public scrutiny the moment they decided not to recuse themsleves from hearing the case in which they clearly had vested interest.

    What the fuck are you are Aiyaz smoking?

    Why can’t people criticise these judges personally for their part in this?

    Why?

    Because it may tend to point to the TRUTH which is staring everyone in the face – that the decision of the High Court was nothing more than an attempt to disguise self-preservation as legal reasoning.

    I say let people blow off steam and call a spade a spade.

    With the exception of Judge Jitoko, the rest of the judiciary is all fucked up right now.

    Thats why we had mass resignations of judges in the months immediately following the coup.

    The three stooges who presided over the Qarase case have sent a clear message to the citizens of Fiji and to the world at large…

    … that MADAME JUSTICE no longer resides in the corridors of Government Buildings, Suva, Fiji.

    She was was murdered by Gates, Byrnes and Pathik on 9 October 2008 – while the whole world watched.

  15. IslandBoy Says:

    I maybe wrong but somehow I DON’T think it was VL soro was referring to as the bush curry lawyer. Just MHO.

  16. Isalei Says:

    well said @corruption fighter and ispy. Mmm ‘bush curry lawyer’… buda?

  17. natewaprince Says:

    Budhau,you’re so full of shit.

  18. natewaprince Says:

    Sorry Amazon,I didn’t know it was you.

  19. kaiveicoco Says:

    Benhur,
    give a break but heaps of praises to the late Rt Sir Kamisese Mara.He has done more for Fiji and more for the fijians than what Rabuka and LQ put together.Apart from his achievements being listed by Fijiforward one important vision the late RT Mara implemented was the Fijian Affairs scholarship.I was one of the beneficiaries fortunate enough to be given an overseas scholarship when this scheme was pioneered.Most of us successfully completed our studies,graduated and came back and are now giving something back to our Fiji.In my first job in Fiji when i returned to Fiji in the early 90s the staff of the multinational company i was working for introduced me to the late Rt Mara during one of his trips downtown.He came up to me shook my hands and said congratulations.I have never forgotten such a gesture from the high chief.I am not a son of a high chief or indian as Benhur claimed.Instead the good Lord heard my prayer and showed me the door to knock on by applying for a FAB scholarship.The rest is history but sometimes in blogging its very easy to be drawn by emotions and our individual experiences can tell us otherwise. We all have our own stories to tell but I am sure all bloggers will agree that what we share is a common vision for Fiji.I have since opened my own business,Rabuka was a good customer,Chaudhary has been in a few times and his son but LQ never.

  20. soro Says:

    Vinaka IslandBoy … u r correct .. vacava na tamani “misunderstanding” wen the bush curry lawyer tries to interpret the lingo. LOL ! AWOL !

  21. Budhau Says:

    You guys are such a bunch of fricken idiots.

    In another story, when Narube said that this worldwide banking crisis would have little impact on our Banking System, you idiots took that as Narube saying that the worldwide economic crisis would have little impact on Fiji’s economy.

    Now you don’t have to be on Bainimarama’s side or Qarase’s side to see that you idiots misunderstood what Narube was saying – BTW that Narube dude, pretty sharp – for a Fijian (Ok that was just a joke).

    In the piece above, the Lal boy said that, “I presume he (the IAG) knows better as a student of law that the conduct of the judges and their judgments are open to scrutiny once a judgment has been delivered by a court:”

    All I did was point out that or course the IAG and other know that – Victor boy was stating the obvious.
    IAG was not saying that the conduct of the judges and their judgment are not open to scrutiny once the judgment has been delivered by a court.
    The IAG’s position seems to be that fair criticism is always permissible and that no one shall be found guilty of contempt of court for making fair comment on the merit of the case that has been heard and decided.
    However, it seems that some criticism may not have been fair and the criticism of the judgment was actually personal criticism of the judges and that is not permissible.
    Once they had started questioning the motives of the judges that is when you get in the area of contempt – trying to get the public to question and not trust the administration of justice as a whole.
    Lal is well aware of the convention that judges do not defend their decisions in public and that if people disrespect the judges laying down the law, they cannot be expected to respect the law laid down by judges. So Lal, do you see how the above would “interfere with the due administration of justice” as pointed out by you in Attorney General v Butterworth [1963] 1 Q.B. 696
    Lal and others should look at the strength of the reasoning in the decision itself and of course, that is open to criticism.

    Before you guys start calling me names, all I did was to show that this Lal dude seems to be over educated for his intelligence – and I just showed you a glimpse of his reasoning abilities, or lack thereof.

  22. Fiji Forward Says:

    Come on people, you cant rant on all your life but it aint gonna change anything!! hear that Soro or perherps we can call you Sorry? A sorry person all your life you will be!!! put your heads together and move this country forward. Soro please change your name to Life, Soro means Given Up!! Have a Life!!

  23. solivakasama Says:

    Apologies freedomfighter but we are removing your post for a separate thread altogether. Thanks mate!

  24. George of Sydney Says:

    Thanx VL. So now we can see that the President does not have any authority to do what he did for he is not the President.
    Bai removed the President so he use the Presidents power as defined in the Constitution.
    Bai appointed himself as President – Also no power and illegal since only the GCC is the appointing body.
    So the application of the “Doctrine of Necessity” cant be VALID and applied by the President for there is no one appointed through the legal and constitutional process to use it.

    So Gate and his fellow puppet judges and also Aiarse take your judgement and shove it up your multiple a…..se.

  25. Fiji Forward Says:

    George if you’re really from Sydney then take your kind of language back to Kings Cross where you get your living selling your maimuri!!

  26. Dauvavana Says:

    Dalit Gandoodhau (also known as Budhau) is talking from his arse again. Yes curry bushlawyer indeed!!

  27. Isalei Says:

    Se bai gusugusu maimuri tiko la o FijiForward Backside levu.

  28. soro Says:

    Hello FF … shame all u can come up with is a critique of my name … for your little brain, here is a dissection FYI ……

    “So” is an alternate Old English spelling for SOL (in solmization) the fifth note of a major scale. …… can you hear it your head yet ?

    And “Ro” is an abbreviation of a crucifix, esp. one positioned above the rood screen of a church or on a beam over the entrance to the church.

    So there …. I am Soro … your musical crucifix … may you dance with the fear of God embedded in your soul !

    NEXT !

  29. FIji Forward Says:

    SORO!!! please change it to SOCO, kua mada na via tera tiko boci lailai!! Isalei, just like the song Isalei you’re a bygone, moce yani…

  30. kini Says:

    CAN WE JUST GET ALONG?

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