‘Necessity”: Where is Yash Ghai when you need him?

In 1990 Yash Ghai published an interesting and learned article sub- titled “The Politics of Legality”. In it he reflected on the legality of the actions of Ratu Sir Penaia Ganilau as the Governor General following the Rabuka coup in1987. In particular, he considered whether the doctrine of necessity could justify Ratu Penaia’s actions.

His observations in 1990 make interesting reading in 2008, particularly when we recall that the Illegal Attorney General was apparently a student of Professor Ghai.

One of the tests that Professor Ghai identified for the doctrine of necessity was that “the acts must as far as possible be consistent with the constitution and the rights of the citizens under it.”

Does Professor Ghai think that President Hollo’s actions meet this test? Judging by what Professor Ghai said in 1990, you would think not. He asked, for example, why Ratu Penaia dissolved Parliament and dismissed the government. He might in his discretion have chosen not to summon Parliament for the time being, but its dissolution could in no sense be regarded as necessary in the circumstances.”

Couldn’t the same thing be said about President lloilo’s actions. Every step he has taken has moved Fiji further from a return to constitutional government.

Another test for the doctrine of necessity identified by Professor Ghai was that “the acts (of the head of state) must not be such that in their intent and effect they consolidate or strengthen the coup; on the contrary they must be directed to the speedy return to constitutional rule.”

Is the appointment of the coup leader as Prime Minister consistent with this test? Quite obviously, it isn’t.

So what has Professor Yash Ghai got to say about the situation in Fiji todays Does he approve of the Gates doctrine of necessity, which could be summed up as: “Mr President do what ever you think necessary and all in your own time”?

Let’s hear from Professor Yash Ghai who had an opinion about the constitutionality of the Governor General’s action in 1987. How do the actions of President lloilo rate against the tests he identified in 1990? What does he think of his former student who has accepted appointment as illegal Attorney General in the illegal regime?



11 Responses to “‘Necessity”: Where is Yash Ghai when you need him?”

  1. freedomfighter Says:

    Lets wait for Budhau to speak on behalf of Yash Ghai!!!!

  2. Dauvavana Says:

    me rau fire ga

  3. Jese Waqalekaleka Says:

    How can you have necessity, when Iloilo is incompetent?

    However, removing both Iloilo & Vore would in my view constitute ‘necessity.’

  4. Ablaze Says:

    “All feeble excuses”

  5. Isalei Says:

    Agree with @JW, the more urgent doctrine of necessity now is to remove the President, IG, corrupt judges, corrupt police, the military, etc.
    To quote Martin Luther King, Jnr: “Give us the ballot, and we will fill the legislature with men (and women) of goodwill. Give us the ballot and we will get judges who love justice (and integrity).”(1957)

  6. kaiveicoco Says:

    SV who is this Yash Gai btw ?

  7. freedomfighter Says:

    From “Professor Wikepedia”

    Yash Pal Ghai (born 1938, Nairobi, Kenya) is a scholar in constitutional law. As of 2007 he is the head of the Constitution Advisory Support Unit of the United Nations Development Programme in Nepal and a Special Representative of the UN Secretary General in Cambodia on human rights. He has been a Fellow of the British Academy since 2005.

    He was the Sir YK Pao Professor of Public Law at the University of Hong Kong starting in 1989. He has been an Honorary Professor there since his retirement in 1995. Prior to that, Ghai taught and did research in law at the University of Warwick, Uppsala University in Sweden, the International Legal Center in New York, and Yale Law School. He was the Chairman of the Constitution of Kenya Review Commission (which attempted to write a modern constitution for Kenya) from 2000 to 2004.

    His grandparents came from North India, being parts of the waves of migration sponsored by the British Empire. His earliest memories of Kenya are about racial discrimination and hatred. His father sent Ghai to Oxford to study.

    Ghai has written several books on law in Africa, the Pacific islands, and elsewhere.

  8. Striker Says:

    When we talk of justice today in Fiji, I doubt that the rule “what is good for the goose is good for the gender” really applies. In its selective nature, what’s good for the goose can only be good for the gender if its good for the goose, never mind the gender.

  9. kini Says:

    He’s probably dead?

  10. loma Says:

    Yash Ghai is on the advisory board of the CCF who supported iazz application for scholarship from the uni of hong kong after the 2000 coup. Is the uni of hong kong proud to have its alumni at the center of the 2006 coup?? By the way hong kong continues to provide assistance to the coup through mccoy, madigan, pryde, etc, maybe the whole of hong kong is proud to be associated with the coup!

    The understanding was iazz was to come back to be CCF in house lawyer after getting his masters from HK. Instead iazz went and made money pushing paper at colonial, hiring other lawyers to do all the legal work while he swanned around the world going to GOPIO and NRI conferences as well as to Mecca on pilgrimage. the rest is history, after the nazi dispatched him to voceqe as go between in the planning of the 2006 coup.

    Ghai was suggested by CCF to voceqe as a panellist for the President’s dialogue. Who knows – maybe Ghai has advised Ban Ki Moon to ignore diaper pressie’s letter. All good to continue to drag fiji through the muck and delay elections.

    Now with media bill to be tabled 2 December in Cabinet for promulgation, can CCF also recommend the freedom of information bill too for promulgation?? you know, for good governance and all that blah blah.

  11. raminder arya Says:

    i am looking for phone number for prof. yash ghai

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