Tuesday, January 16, 2007

Ilegitimate Regime

Military off-track, say party observers

The military is starting to deviate from its promise that no officer will benefit from the clean-up campaign, says the Vanua Tako Lavo Party. President Viliame Savu said political parties had been monitoring the military since it made a statement saying its members would not take up public office. "Some of them have been given top posts in some of the government ministries," said Mr Savu. Republic of Fiji Military Forces spokesman Major Neumi Leweni said the military had not seen anyone else from inside that organisation or outside capable of cleaning it up. "That is why we had to send one officer from the military to that department to conduct a thorough clean-up," said Major Leweni. A good example, he said, is the Immigration Department, which has reduced the processing time of acquiring a passport from weeks to two days.
"And the Prisons Department, how he (Prisons Commissioner Colonel Iowane Naivalurua) has made a difference," Major Leweni said. He asked all those people who had been complaining on the appointments to visit those government departments. Mr Savu reiterated deposed Prime Minister Laisenia Qarase's statement that some who had lost in the last election had wanted some posts in the interim government. Soqosoqo Duavata Ni Lewenivanua party national director Peceli Kinivuwai said everyone was watching everything going on in the country. "We read between the lines," he said.


Democracy in 5yrs: Bainimarama tells EPG
www.fijilive.com - Monday January 29, 2007

Fiji's interim Prime Minister Commodore Voreqe Bainimarama has told the Forum Eminent Persons Group that it will take Fiji five years before democracy is restored. Bainimarama, after meeting the EPG today said: "Fiji is prepared to engage with partners, bilaterally, regionally and multilaterally in its efforts to fully implement the mandate given to the interim Government by the President Ratu Josefa Iloilo". He also reiterated to the EPG his statements of "eradicating corruption, mismanagement and abuse of office" before the restoration of democracy, the same argument Bainimarama used to depose Laisenia Qarase's government.

The Commonwealth Council had promptly suspended Fiji from the Commonwealth after the December 5 coup, with strong resentment from the outgoing United Nations general secretary Kofi Annan. The European Union is also threatening to pull off $350million in aid from Fiji. The interim administration is banking on a positive outcome from the EPG report that could bring the Commonwealth, the UN and the EU into "determining their future relationship with Fiji".

"For Fiji's next General Elections to be free and fair there are several important requirements that must be fulfilled," Bainimarama said. He said there is a need for national census, the determination of new constituency boundaries and a new voter registration system and voter awareness and education systems. Bainimarama said the Elections Office would have to be "significantly enhanced" before "free and fair elections takes place".

The four-member EPG headed by Vanuatu's Deputy Prime Minister and Foreign Affairs Minister Sato Kilman is on a fact-finding mission to Fiji to access the cause of the December 5 military coup. The EPG also comprises of Samoa's Minister for Natural Resources and Environment Faumuina Luiga, retired Chief Justice of Papua New Guinea Sir Arnold Amet and retired Chief of the Australian Defence Force, General Peter Cosgrove.

While the military action copped huge criticism by its bigger neighbours Australia and New Zealand, members of the Melanesian Spear Head Group (MSG) countries sanctioned the action prompting the Forum to meet and send off the EPG mission to Fiji. "Besides Australia and New Zealand, the other forum island countries have left us to sort our own affairs," Bainimarama added. "We have told a lot of people to assist us to go forward." Bainimarama said the EPG mission is very important for Fiji as it "creates a pathway to full engagement with the region and the rest of the world".


Comments about President is an insult - Khaiyum - wwww.fijivillage.com
Jan 23, 2007,


Attorney General Aiyaz Sayed Khaiyum has labelled comments made by prominent Fiji lawyer Richard Naidu that the President is a military puppet as an insult and disrespectful. Sayed Khaiyum said the Tui Vuda Ratu Josefa Iloilo is a wise man and Naidu has no right to question his decisions. Constitutional lawyer, Richard Naidu told Radio New Zealand the President is a puppet in a regime that can only be viewed as illegal following claims by Interim Attorney General that last month's overthrow was not a coup.

Aiyaz Sayed Khaiyum said the military intervention did not breach the constitution because it fell within the scope of the Doctrine of Necessity.

Naidu said while the President's gone along with it all, that does not make things right in Fiji. Naidu also said he has real concerns about the independence of the judiciary. He believes the military is trying to subvert court rulings by passing illegal laws every time the court does something it does not like.

Meanwhile, the Sayed Khaiyum has this afternoon revealed that the President has written a letter to the Interim AG to seek his assistance in appointing a tribunal to investigating Chief Justice Daniel Fatiaki.


The trouble with immunity

By MAIKA BOLATIKI
Political Editor

The President used his executive power enshrined in section 83 of the 1997 Constitution to promulgate the Immunity Decree to cover all those involved in the illegal removal of the Laisenia Qarase-led multi party government on December 5, 2006.
Section 85 of the constitution states - This section establishes the office of the President. The executive authority of the State is vested in the President.
The Interim Government Promulgation No. 3 reads: "In exercise of the powers conferred upon the Interim Government and upon the exercise of my own deliberative judgement as President of the Republic of the Fiji islands as to what Is in the best good of the beloved people of Fiji and by the executive authority of the state in accordance with clause 85 of the constitution and all such other powers as may appertain, I Josefa Iloilovatu, President of the Fiji Islands hereby make this promulgation:
1) This promulgation may be cited as the Immunity (Fiji Military Government) Promulgation 2007 and comes into force immediately upon its enactment with full retrospective ad prospective effect.
WHEREAS the state of national governance and the condition of integrity in our political institutions had so deteriorated because of pervasive corrupti9onas to cause serious long term deleterious effects to the nation and its citizens
AND WHEREAS the Commander of the Republic of Fiji Military Forces reluctantly intervened by a declaration of a sate of emergency on 5th December 2006and other acts subsequently including as holding the office of Acting President of the Rep0ublc of the Fiji Islands between 5th December and 4th January 2007,to return the governance of the nation to an honest path.
AND WHEREAS the Commander as Head of the Interim Military Government of Fiji assumed and exercised the executive and legislative power of the state up until 4th January 2007.
AND WHEREAS it is my sincere and firm deliberative believe that those actions and events were properly motivated demonstrably overdue ad profoundly for the common good of the nation which had been teetering on the brink of an abyss of irremedial corruption, misfeasance and nonfeasance and dysfunction.
AND WHEREAS the aforesaid actions and events have my full and complete concurrence and approval.
AND WHEREAS for the avoidance of any doubt ass to the lawfulness of the aforesaid intervention.
AND WHEREAS t is my sincere and firm deliberative belief that the best and wisest course, in the interest of restoring law and order, peace harmony and good government so that our beloved nation will become stable and grow prosperous, is by the reserve powers of the constitution inherent in the President and by the constitutional law and common law of Fiji and b all other law so appertaining to grant FULL AND UNCONDITIONAL IMMUNITY from all criminal or civil or legal or military disciplinary or professional proceedings or consequences, instituted whatsoever against or in relation to any person or persons who by his or her or their agreement, acts or omission, caused or facilitated or confederated in or incited or conspired or aided or abetted or counseled or procured or in any way (whatever before 5th December 2006 or up until 5th January 2007) to intervene in, oust and remove from office the then legislative and executive organs of government of the Fiji Islands, its Prime Minister Ministers, officials and also of other persons whose office or employment were not conducive to the public interest of the beloved people of Fiji.
I DO IRREVOCABLY GRANT FULL AND UNCONDITIONAL IMMUNITY to all persons scheduled below from any prosecution and for any civil liability and all other legal or military or disciplinary or professional proceedings or consequences as a result of directly or indirectly or pertaining to or arising from the acts and omissions, of the Fiji Interim Military Government from 5th December 2006 until the restoration of executive power of the state in me the President, and court or tribunal whatsoever shall have any jurisdiction to entertain any action or proceeding or make any decision or order, or grant any remedy or relief in any such proceedings.
Persons granted immunity are the Commander, care-taker Prime Minister Jona Senilagakali, all officers and members of the RFMF, all officers and members of the RFMF reserves, all officers and members of the Fiji Police Force, all officers and members of the Fiji Prison Service and al other persons who acted under the directions, orders or instructions of any of the mentioned persons.
I must admit that the legality of the Immunity Decree is questionable.
We question the use of the reserve power by the President under section 83 of the constitution.
The established rule in the Commonwealth nations with a Westminster system of government, such as Fiji, is that the president must act on the advice of the Prime Minister and other members of the executive. This is set out in section 96 (1) of the constitution.
However, it has been recognised that in limited circumstances a President may act other than in accordance with the advice of the government. In such cases, the President is said to have exercised a reserve power.
Here in Fiji, there is no reserve power that may be exercised; the appropriate course for a President is to allow the issue to be determined on the floor of the parliament.
We are faced by a very odd situation where we still have our constitution in place with an Interim Military Government ruling.
The legality of the military administration had been questioned from the very day it overthrew the Qarase-led democratically elected government.
Because the constitution is still in place, the only legal way to enact immunity is to amend the constitution, but again this could not e achieved because we have no parliament.
Ousted Prime Minister Qarase is, naturally, totally against the Immunity Decree.
Pacific Centre for Public Integrity executive director Angie Heffernan said they did not condone the granting of immunity for illegal acts against the state and the people.
The President, she says, does not have absolute power.
The law of Fiji is clear. The constitution establishes the parliament as the sole arbiter of constutional change. No power to abroate or amend the constitution is conferred upon the President.
To be fair to all, this immunity decree should be referred to a court to determine its legality.
Surely the immunity decree has deprived the rights of the people affected by the illegal takeover to take court action against the Commander and his men.
The Commander and his men were well aware of the possible consequences of their illegal action.
Now that they have been granted immunity, the President can be taken to court on his action but he had acted in accordance with the advice given to him.
Who gave this advice?


Comment:

  • I fully endorse Qarase's point on this and it is disappointing to see the role the President of Fiji is playing in the illegal takeover of a democratically elected government. The President has clearly acted beyond his constitutional powers and the sooner the Great Council of Chiefs meet to send him a statement of no confidence the better. He clearly has become a puppet of the Military in Fiji and what a sad and shameful act.


Qarase says President and Military are hypocrites

www.fijivillage.com - Jan 21, 2007

Ousted Prime Minister Laisenia Qarase.Ousted Prime Minister Laisenia Qarase has criticized President Ratu Josefa Iloilo for granting immunity to the Army Commander Commodore Frank Bainimarama and his men.

ABC Radio reports that Qarase also accused the Fiji Military of hypocrisy in obtaining immunity from prosecution.According to Qarase it is hypocritical for those involved in the December 5th takeover to escape prosecution while those involved in the 2000 coup are serving jail terms.

The ousted Prime Minister also says that President Iloilo has displayed double standards in signing the immunity decree. In a Government gazette dated 18th January 2007, the President Ratu Josefa Iloilo has granted full and unconditional immunity to the Commander of the Fiji Military Forces and all his men for their actions arising from the events of December 5th 2006.

PM threatens to hit back over NZ, Australia travel bans

www.fijitimes.com - , January 19, 2007

INTERIM Prime Minister Voreqe Bainimarama has vowed to take 'retaliatory measures' if Australia and New Zealand continue to take a tough stand against his interim government. This follows the refusal by New Zealand to allow Parmesh Chand into the country. Commander Bainimarama said Mr Chand, the CEO in the PM's office, was to have joined his family in New Zealand for a short holiday but was denied travel this week.


''It has been brought to my attention that travel bans imposed on so-called supporters of this Interim Government has widened to include some civil servants,'' he said. ''My Government announces that should Australia and New Zealand continue to ignore and frustrate this administration, Fiji will consider retaliatory measures. ''We have been acting kindly towards our 'big brother nations', giving them a chance to accept the situation and help move Fiji forward. ''Both these countries export hundreds of millions of dollars of goods and services into our domestic market. ''They also have many expatriates here on work permits, working in various institutions and companies. ''Fiji has strategic, historic and strong socio-economic links with both these countries. We are strong partners in the Pacific Islands Forum and also in the international and multilateral arena. 'Yet they have chosen to categorically ignore the realities and work against us to take Fiji forward.


''Their rhetoric on good governance and elimination of corruption and poverty would remain hollow words if they do not extend a helping hand to address the on ground realities. ''I am considering imposing a series of retaliatory measures if both these countries do not respond positively to our situation.''

Law Society won’t tolerate interference
www.fijilive.com - Friday January 19, 2007

Chief Justice Daniel Fatiaki (l)
The Fiji Law Society is not going to tolerate any interference in the judicial system says president Devanesh Sharma.

He made the statement in response to the army’s attempts to prevent suspended Sugar Cane Growers Council chief executive Jagannath Sami from returning to work as stated in a temporary court order.

"The court has given a directive but the court order is being prevented from being enforced by the military," Sharma said.

"So one must ask the question, are the courts of this country being able to function freely at the present time or do we have just have an interim civilian regime that is sitting at the back and being controlled by another force?"

"The judiciary has absolutely got to not be interfered with by any body or authority at all.

"If the court makes an order then you obey it, and obey it unconditionally," he said.

Sharma said that if someone does not like a court order, they can make an application to the courts to either set aside the order or to stay it, "but you do not have the right to take arms and attempt to go prevent the enforcement of a court order through force."

"You don’t do that."

Sami is challenging his suspension by the army commander Commodore Voreqe Bainimarama last month over allegations of abuse of office.

He was temporarily allowed to continue his work by the High Court in Lautoka on Wednesday where Justice John Connors ordered the military to not interfere with Sami.

However, Sami was warned about returning to work and was also taken away for questioning by soldiers.

"It’s all very well to talk about the integrity of the judiciary and the independence of the courts and the judges, if it’s not being allowed to function, there are serious consequences of this. I am very disappointed, to be quite honest," Sharma said.

"We are trying to move the country forward and if these types of interference in our court systems, judiciary and the enforcement of court orders are taking place, then we are no better off where we started from."

Sharma also related to other "interferences" into judicial affairs by the military in particular the "forced leave" of the Chief Justice Daniel Fatiaki and Chief Magistrate Naomi Matanitobua.

Sharma said the action was illegal because, "the RFMF do not have the mandate or the authority to in fact to send any member of the judiciary on leave."

"They do not have the right to come in and interfere with them and raise allegations nor do they have the right to ask any member to go into leave."

Sharma said there is a process to follow and "it is not incumbent upon any authority that does not have the mandate to make that kind of a decision."

"I have personally taken the view that the actions taken against Chief Justice Fatiaki and the Chief Magistrate were clearly illegal," he said.

"There is only one authority that can deal with these two parties that is the constitutional authority. Not the military or any other authority."

"We want our judiciary to be protected at every single step of the way.

Sharma said the society is considering the possibility of testing the matter in court.

"We believe that an illegal act has been done, and we have every right to consider the possibility, but we would need to obtain senior counsels opinion on this and make sure we properly file the matters in court."



Decree to protect army, interim Govt
www.fijilive.com - Friday January 19, 2007

Interim Prime Minister and army commander Commodore Voreqe Bainimarama
A Fiji Military Government decree has been drawn up to protect the status of the Military and the Interim Government.

Interim Prime Minister, Commodore Voreqe Bainimarama says a decree has been drawn up to counter any complaints against the military and the current government.

"A decree has been drawn up to counter these complaints and don’t expect us to abrogate the constitution because that will never happen."

He said that the decree may be cited as the ratification and validation of the declaration and decrees of the Fiji Military Government Decree 2007, and it comes into immediate force upon its enactment.

This follows numerous complaints from the public of assaults and harassments at military camps around the country.

Citizens who have been allegedly tormented by soldiers are claiming that the Fiji Human Rights Commission has not done anything to help them.


Daniel Fatiaki enters CJ’s office and refuses to leave

By www.fijivillage.com - 18 January 2007

Chief Justice, Daniel Fatiaki arrived at the CJ's chambers at the Suva courthouse a few minutes ago.

Village News has received information that Fatiaki has entered his office and has refused to leave, saying that he is the Chief Justice and no one can remove him from the position.

We can confirm that three military officers are currently meeting with Fatiaki in his office.

We will have more at midday.

Fatiaki said yesterday that the appointment of High Court Judge Justice Anthony Gates to the post of Acting Chief Justice is a disgrace.

Fatiaki said the appointment of an Acting CJ and the involvement of High Court Judge Justice Nazhat Shameem in the matter is a betrayal of his trust and a betrayal of the judiciary.

Fatiaki said the actions of the High Court Judges who have supported the Military are also cowardly and mercenary.


Regime's illegal: Lawyers

www.fijitimes.com - Thursday, January 18, 2007

THE interim administration is illegal and interference with the judiciary is wrong, the Fiji Law Society maintained yesterday.

The society, reiterating its position, follows speculation it had changed its stand because of reports it was part of the Judicial Services Commission, which recommended that High Court judge Justice Anthony Gates be appointed Acting Chief Justice.

Yesterday society vice president Tupou Draunidalo said the society's earlier statements on the legality of developments that had unfolded since the December 5 military takeover were unchanged.

She refused to elaborate or respond to further queries.

Ms Draunidalo made the comments in response to questions regarding issues raised by Suva lawyer Richard Naidu in a column in this newspaper on Tuesday.

Mr Naidu had said, among other things, that the return of power by military commander Commodore Voreqe Bainimarama to the President, Ratu Josefa Iloilo, was futile because it did not legitimise the events that unfolded on December 5.

Society president Devanesh Sharma said while they accepted the society would deal with the administration without prejudice to any legal action on the validity of its appointment, it should not be assumed that it meant they accepted the interim Cabinet to be legitimate in the eyes of the law.

The society met last weekend to discuss its stand on the issue.

Mr Sharma said Ratu Josefa had the power to make constitutional appointments only in compliance with the provisions of the Constitution.

"He (the President, Ratu Josefa) can not act unconstitutionally himself," Mr Sharma had said.

He has asked Attorney-General Aiyaz Sayed-Khaiyum to impress on the military the importance of the independence of the judiciary and the need to allow Chief Justice Daniel Fatiaki and Chief Magistrate Naomi Matanitobua to resume duties.

He said the society was reviewing its options to shortly institute legal action against the ban on land sales and the forced leave of Justice Fatiaki and Ms Matanitobua.

"The society deplores the attempts made by the RFMF to interfere with the judiciary.

"The Chief Justice and the chief magistrate must be allowed to immediately resume their official duties," Mr Sharma said.

Interim Attorney-General and Minister of Justice Aiyaz Sayed-Khaiyum said the appointment of all individuals under the regime, including interim Cabinet ministers, were mandated by the President.

He had earlier said the military regime upheld and respected the Constitution.

Mr Naidu had said in an earlier interview that the system of things as they were was illegal.

He said if the Constitution was indeed being upheld, where was the Vice President, Ratu Joni Madraiwiwi, who was appointed by the Great Council of Chiefs during the reign of a democratically elected government.

Mammoth task for rulers

We all know that an Interim Government led by the military commander, Commodore Voreqe Bainimarama is now in full control and governs the country. Australia and New Zealand are both saying the Commodore Bainimarama-led interim government is illegal. Soon after the swearing in of the commander as Interim Prime Minister by President Ratu Josefa Iloilo, New Zealand cabinet minister Ruth Dyson said: “The swearing in of Fiji’s military commander as that nation’s interim Prime Minister inspires no confidence that Fiji is moving quickly back to democratic rule.” She said in a press release from New Zealand that Commodore Bainimarama’s appointment came as little surprise and was an attempt to validate the coup and obtain immunity for the perpetrators, and it was hard to see how it would ensure a swift return to democracy. In the meantime New Zealand’s range of sanctions against Fiji will remain in place, and Wellington will continue to watch further developments very closely. The same sentiment has been aired by Australia. Foreign countries and organisations have forewarned the commander that an overthrow of a democratically elected government will be severely condemned by the international community. Because of what has happened, Fiji has again been suspended from the Commonwealth. Secretary-General Don McKinnon said: “The Commonwealth brings together 53 democratic countries around the world. We have no tolerance for military leaders who overthrow democratic governments. The overthrow of an elected government would be a clear violation of the Commonwealth’s Harare Principles, which define our association’s fundamental political values.”

The United States of America and the United Kingdom have also put in place sanctions as they are totally against the military takeover. The international stand remains, even though we now have an Interim Government. It is always a norm that when we are squeezed into a tight corner we try our very best to acquire help to free us. Well this is the scenario that the Interim Government now faces. We cannot deny the fact that many of our overseas friends have turned their backs on us. Our economy is down and a recovery plan must quickly be put in place. I need to touch on two major areas that have to be tackled quickly.

The first task the Interim Government has to fulfill is to quickly complete the clean up campaign, as this was the main reason for the military coup. Many people in Fiji fully support the clean up campaign but they now need credible evidence from the interim government. The credibility of the interim government will depend on the clean up campaign. The Qarase-led Government had been labeled as corrupt. But this corrupt allegations that has to be proved beyond doubt. The deposed Prime Minister Laisenia Qarase has always maintained that if the army has evidence to all the allegations then they should forward them to the police for investigations.

Many people support Commodore Bainimarama’s interim government because the interim Prime Minister has made a very bold promise to eradicate corruption from all government departments. Of course corruption exists in all government ministries and institutions from as early as the colonial days. This is the first mammoth task for the interim government. The second is for the government to prove of the legality of its existence. This again will be a hard task because from the beginning of the takeover, all legal birds have agreed that it is illegal and that the 1997 constitution is still in place. The military takeover on December 5, 2006 in accordance with the military’s interpretation was legal as all they did was use the doctrine of necessity provided for them by the 1997 Constitution. In his public declaration of the military takeover the Commodore said: “As of today (Tuesday December 5), the military has taken over the government/executive authority/running of the nation.“As Commander of the RFMF I, under the legal doctrine of necessity, will step into the shoes of the President given that he has been blocked from exercising his constitutional authority.” Fiji Human Rights Commission director Shahista Shameem says according to case law and constitutional texts, “reserve power” can only be exercised by the purported or actual sovereign or head of state in order to preserve the life of the state.

“It is an extra-constitutional and temporary measure,” said Dr Shameem.“The question of constitutionality or even legality with respect to ‘duty of necessity’ does not arise as the act done is often claimed to be necessary for the survival of the constitution, that is, for the legal foundation of the state itself.” This is the second time the commander has used the doctrine of necessity The first was in 2000 when he abrogated the 1997 Constitution. This was challenged in court and was thrown out. In his ruling Justice Anthony Gates said, the purported abrogation of the Constitution was unlawful as the doctrine of necessity could come to aid Commodore Bainimarama in resolving the hostage crisis, imposing curfews, maintaining roadblocks and ensuring law and order on the streets. Once the hostage crisis was resolved and all other law and order matters contained if not entirely eradicated, the Constitution, previously temporarily on ice or suspended, would re-emerge as the supreme law demanding his support and that of the military to uphold it and to buttress it against any other usurpers. The doctrine could not be used to give sustenance to a new extra-constitutional regime. This time around the commander uses the doctrine of necessity with the 1997 Constitution still in place. Can the Fiji courts make this interim government legal? Surely this has to be tested by the interim government.

According to George Williams Anthony Mason Professor and Director Gilbert + Tobin Centre of Public Law Faculty of Law University of New South Wales, there have been cases heard several years after a coup where courts in other nations have given legal recognition to an otherwise unlawful usurper. “In such a situation, courts have commonly recognised that it is futile to deny the legality of the new regime and have taken the pragmatic course of declaring that a new legal order has been created. The power to declare the old order to be over and that a new order has arisen is an example of the exercise of a supra-constitutional jurisdiction, that is, a jurisdiction that involves the court stepping outside of the legal and constitutional order that created it. According to Lord Reid in Madzimbamuto v Lardner-Burke, it is a role that cannot be avoided as a court ‘must decide’ upon the ‘status of a new regime which has usurped power and acquired control of that territory’. He continued: It is an historical fact that in many countries - and indeed in many countries which are or have been under.” “British sovereignty - there are now regimes which are universally recognised as lawful but which derive their origins from revolution or coups d’etat. The law must take account of that fact. So there may be a question how or at what stage the new regime became lawful.” In 2000 when the Qarase-led Interim Government was declared illegal by the court, it continued to rule because the people did not want the People’s Coalition Government to be back in power. The Commodore Bainimarama-led interim government could face the same treatment but it will not give back power to the ousted Qarase-led government.

he interim Prime Minister is heard saying the military could rule for another 50 years. Hopefully the Interim Government will not go that distance, as we all want a democratically elected government quickly in place. Already it is facing an acid test with the state of emergency declared by the commander still intact for he has the executive authority and power. However, if there is a state of emergency declared it must come from President Ratu Josefa Iloilo. There are other challenges ahead of the interim government but I have no doubt the two mentioned above are foremost and must be tackled as early as possible. There is light at the end of the tunnel and lets hope for the best.

Chief Justice queries acting appointment
www.fijilive.com - Wednesday January 17, 2007

Acting Chief Justice Justice Anthony Gates with the President Ratu Josefa Iloilo
Questions are being raised about the circumstances surrounding the appointment of Justice Anthony Gates as Fiji’s acting Chief Justice.

Chief Justice Justice Daniel Fatiaki, who was told to go on leave by the army commander pending investigations into the judiciary, has questioned the role of a fellow judge in a meeting which appointed Justice Gates.

Justice Nazhat Shameem chaired a meeting of the Judicial Services Commission on Monday in the absence of the CJ where it was unanimously agreed that Justice Gates be appointed and sworn in as acting CJ.

Justice Fatiaki told local radio that the involvement of Justice Shameem and the appointment of Justice Gates were a betrayal of his trust and a betrayal of the judiciary.

He also described Justice Gates appointment as acting CJ as a disgrace.

Justice Fatiaki said the actions of the High Court Judges who have supported the Military are also cowardly and mercenary.

However, in a statement interim Attorney General and Minister for Justice Aiyaz Sayed-Khaiyum said Justice Shameem was asked to chair the meeting of the JSC in her capacity as senior most substantive judge who is the natural successor to the Chief Justice.

Sayed-Khaiyum said Justice Shameem agreed and subsequently convened a meeting.

He added he had no say in the agenda.

The meeting which was also attended by the president of the Fiji Law Society Devanesh Sharma and Public Service Commission chairman Rishi Ram unanimously agreed that Justice Gates be appointed acting CJ.

Sayed-Khaiyum said other judges may have felt aggrieved that they were not chosen by the JSC to act as CJ however he was advised by the Commission that the most senior puisne judge after Justice Shameem was Justice Gates.

"So his appointment is uncontroversial and constitutionally correct," he said.

Justice Fatiaki and Chief Magistrate Naomi Matanitobua were sent on leave by army commander and then acting President Commodore Voreqe Bainimarama last month pending investigations into the judiciary.


www.sun.com.fj - Tuesday 16 January 2007 - Winners, losers and justice

When an old order is overthrown and replaced with a new one, two words come to mind when passing judgment on the behaviour of the new rulers: siegerjustiz and vae victis. The former, a German word, means “victor’s justice”, and the latter is invoked, where the victor unilaterally changes the agreed treaties or their interpretations. Many of us publicly supported the changing of the old guard under the Doctrine of Necessity because of the dangers contained in the various contentious bills that the ousted Laisenia Qarase government was forcibly ramming down the throat of the nation. We also welcomed Commodore Frank Bainimarama’s decision to take out newspaper advertisements to recruit members of an interim government after he seized power on December 5, 2006. The army had stated that applications must be “of outstanding character” and must not have a criminal record. Rarely, as most local and international observers noted, could a country have sought government ministers in the want ads. According to the Commodore the jobseekers “must have at least ten years of experience in the workforce, be of sound character, and must never have been declared bankrupt”.

The advert stated that the interim government would help rid Fiji of corruption and bad practices. The army spokesman said he expected the recruitment campaign to go well and stressed that several people had already applied, although he would not say how many. Later, Commodore Bainimarama disclosed at a press conference that the Military Council was processing about 300 applications for vacant posts in an Interim Military Government. In December, a mixture of 400 applied to serve the nation. According to Major Neumi Leweni, four former Cabinet Ministers in the ousted Soqosoqo Duavata ni Lewenivanua-led government had also applied for posts in an interim government. He also told us that the military was looking for 14 people to take up ministerial positions. He said the army was optimistic of forming a think-tank including unionists, lawyers, doctors and other professionals to select a government as soon as possible.

So far so good.
But now it emerges that some of the 16 serving in the Interim Government, were hand-picked for the jobs. Major Leweni says it was clear from the outset that not all who offered their services would be considered. According to him, some were personally approached to take up the posts. Mahendra Chaudhry and Ratu Epeli Ganilau have publicly disclosed that they were approached to take up interim cabinet positions.Well, who approached them - members of the think-tank committee? Is Parliament a workforce? What is important to establish is whether the think-tank committee was ever set up to sort out the 400 applications? Ratu Epeli Ganilau has been joined by his National Alliance Party members who include Interim Education Minister Netani Sukanaivalu, who failed to win the Tamavua/Laucala Fiji Urban Communal seat, and Interim Transport and Works Minister Manu Korovulavula, who also failed to win the Laucala Open constituency. Mr Chaudhry has been joined by his deputy Lekh Ram Vayeshnoi. Poseci Bune says he was dismissed on 4 December as deputy leader of the FLP, a day before the army takeover. He now says that Mr Chaudhry is the best person for the finance job, despite having temporarily wrested control of the FLP leadership when Mr Chaudhry was in Hong Kong, in an attempt to submit a new list of senate nominees to the President from the list submitted by Mr Chaudhry.

A former SDL minister has also joined the interim administration. We do not know whether he had applied for a post, and so has another Ganilau, Bernadette-Rounds, who is now Tourism Minister. As I wrote previously, in the name of transparency, the military must make public the list of all those who applied to help the nation. What guarantee is there that we will not have a repeat performance if a government department or another public or private body advertises for positions, and later tells the applicants, “Sorry, we went around asking for people to join us, and some have agreed to do so, so your applications will not be considered any longer”. It would have been prudent and desirable if qualified civilians were appointed by the President to give the Interim Administration some legitimacy.

The second question of interest is whether these ministers have been asked to sign a written contract, undertaking not to contest the next general election. If so, when did they sign the contract? If not, why not? Since no salaries were mentioned in the advertisements, can the Interim Prime Minister disclose how much salary are his interim cabinet ministers going to be paid for volunteering or being approached to help in the clean-up campaign? The previous military-appointed caretaker Prime Minister Dr Jona Senilagakali had directed that his office salary be reduced by 10 per cent, according to a press release by the PM’s Office, and other privileges that came with the job.

The third question is the conflict of interest. When the Commodore assumed power, he immediately dismissed those holding multiple positions on various boards, which he claimed was not only wrong but was preventing those dismissed from giving 100 per cent of their service to the nation and their respective boards. It would, therefore, be only legitimate and fair to ask whether he himself is prepared to give up the control of the military, to devote his time to the running of the country. Will he also call upon Mr Chaudhry to resign as general secretary of the National Farmers Union, so he (Mr Chaudhry) can be independent on the sugar reforms?
In December, the NFU welcomed the decision by the military to suspend both the Growers Council CEO Jaganath Sami and its chairman and to institute an inquiry into the affairs if the council. In fact, it is in Mr Chaudhry’s interest, whether there is or not any constitutional conflict of interest, to resign from the NFU if the results of any inquiry into the allegations are to be accepted or respected in the future. Will the Commodore also ask Mr Chaudhry and Mr Vasheynoi to resign from the FLP? Will Mr Chaudhry call upon his political boss at the first interim cabinet meeting to return to immediate democratic rule? On 6 December the FLP’s management board passed a resolution to that effect. While on the FLP, it is legitimate to ask Mr Chaudhry why he thinks it is perfectly moral to accept a position in the interim government without having applied for the job, when only last year he made public, what he termed the truth, surrounding the controversy over whether former Vuda MP Vijay Singh was promised a Senate seat if he gave up his Vuda seat to Felix Anthony.

Mr Chaudhry was responding to allegations by Bune, Krishna Datt, Felix Anthony, Atu-Emberson-Bain and Agni Deo Singh that he had reneged on a pre-election promise to give a Senate seat to Mr Singh. Mr Chaudhry claimed at the press conference that he was totally against Mr Anthony contesting the Vuda Open seat because this was in breach of FLP procedures as Mr Anthony had not applied for a seat. The FLP Constitution requires applications to be submitted by all intending candidates. Mr Chaudhry pointed out to the management board that the inclusion of Mr Anthony at the last minute, and that too without an application, would be causing injustice to another applicant Vyas Deo Sharma who was contesting the Vuda Indian Communal seat. He even told them that if they insisted, they should look for another leader for the party.”Why was it so important to bring Felix Anthony into the House of Representatives in breach of the party constitution and, at the cost of injustice towards another sitting MP?” he asked. Did Mr Chaudhry protest in a similar vein to the Commodore, telling him that in his view, he was not going to accept any position in the interim administration, because he never applied for the job? It would be grossly unfair to all those 400 applications who responded to the military’s advertisement to serve the nation in its hour of need. I have spoken of siegerjustiz and vae victis.

The final point to stress is “loser’s justice”. Whatever happens from now onwards, the Commodore must not be seen to be allowing his ministers to further their own agendas against their opponents and critics in their selective search for corruption in departments and organisations. Will a special commission be also set up to investigate the allegations of vote-rigging in the last general election? We were recently informed that the FLP will no longer pursue its case against the Elections Office, despite having filed a writ against the results of the Laucala Open constituency which was won by SDL’s Losena Salabula. Mr Korovulavula was among the losing candidates. The FLP lawyer, Rajendra Chaudhry, says that they will withdraw the case next month when it is to be heard in the Suva High Court. He said there was no longer a need to pursue the case as the Laisenia Qarase government was no longer in power as of December 5, 2006. Strange reasoning!

If the court will no longer be called upon to rule on the results, who will? A coup should not be the determining factor in withdrawing the case, unless the Interim Government has other means in place to verify the rightful winner of the Laucala Open constituency. The Commodore must not be seen to allow himself to go down the path of the so-called “loser’s justice” to achieve his clean-up campaign. He must remember the telling criticisms of trade unionist turned FLP MP Felix Anthony, who had condemned him in 2000 for agreeing to George Speight’s demands as “capitulation to the principle demands of terrorists” and for “a deafening lack of resolve in upholding the law” following the seizure of the Chaudhry government. The clean-up campaign must be clean and transparent. It begins with the Interim Government in the first instance, including the Commodore-cum-Interim Prime Minister. It should even include the Auditor-General’s reports into the Chaudhry government.



Return of executive authority failed to legitimise regime: Naidu

www.fijitimes.com - Tuesday, January 16, 2007

THE return of power by military commander Commodore Voreqe Bainimarama to President Ratu Josefa Iloilo does not legitimise the State of Emergency or the interim Cabinet, said lawyer Richard Naidu.

"Just because we have the same President we had before and everyone is saying "we are following the Constitution" does not make any of this constitutional," he said.

"In life, if something looks like a duck and quacks like a duck it probably is a duck. In law, something that looks like a government and quacks like a government isn't always a government," Mr Naidu said.

He said if the Constitution had been followed all along, then where was the constitutional Vice-President Ratu Joni Madraiwiwi.

Ratu Joni had told The Fiji Times last week that he was on leave and would start work at Howards Law, where he practised prior to his appointment by the Great Council of Chiefs as Vice President. He refused to reveal reasons behind his decision to resign as Vice President.

Mr Naidu said the President could only appoint interim Cabinet ministers under the Constitution on the advice of a Prime Minister "who has the confidence of Parliament".

He said the court must clarify the "law" as it stood today so "we can move forward".

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