Thursday, March 01, 2007

Qarase Case Against Illegal Regime

Qarase’s challenge to the Interim govt: 6

28-Feb-2007 - www.fijidailypost.com


KEY:
First Plaintiffs: Laisenia Qarase; Ratu Naiqama Lalabalavu; Ro Teimumu Kepa; Ratu Suliano Matanitobua; Adi Sivia Qoro; and Josefa Vosanibola.

Second Plaintiffs: Ratu Apenisa Kalokalo Loki; and Peceli Kinivuwai.

1st Defendant: Josaia Voreqe Bainimarama
2nd Defendant: RFMF
3rd Defendant: The State of the Republic of the Fiji Islands
4th Defendant: Attorney-General of the Interim Regime

64. That there have been numerous reports of persons being taken to the Military Camp in Suva and cautioned about speaking out against the Second Defendant.

65. That there appears to be widespread and growing disaffection with the overthrow of the de­mocratic government both nationally and internation­ally. Domestic groups and organisations that have expressed their disapproval for the over­throwing of the democratically elected government include Fiji’s churches, NGO’s, the Great Council of Chiefs, the Fiji Law Society, various individual citizens, all political parties represented in Parliament, and the Human Rights Commi­ssion. Internationally, condemnation has been expressed by the governments of New Zealand, Australia, the US, Samoa, and Papua New Guinea (to name a few) along with regional organisations such as the Commonwealth, the Pacific Islands Forum, the Melanesian Spearhead Group, the African Caribbean Heads of State, the European Union, the United Nations and the International Commission of Jurists. These have all been publicised in the local media since the coup on 5 December 2006.

66. That various prima facie illegal acts, including breaches of fundamental human rights enshrined under the Constitution, have been alleged to have taken place, and these include among others already alluded to in previous paragraphs herein – (a) breaching the right to freedom of speech and expression under section 30 of the Constitution by curtailing the freedom of both the press and various individuals and groups to express their opinions. (b) breaching the right to freedom from unreasonable searches and seizure under section 26 of the Constitution, e.g the searches and seizures without valid search warrants in relation to the private offices of Mr Ballu Khan and the SDLP and the private residence of Mr Ballu Khan. (c) Breaches of the freedom to assemble and demonstrate with others peacefully under section 31 of the Constitution by not allowing any protest marches or gatherings especially around the main urban centres including Suva; (d) Potential breaches of the right to freedom of association under section 32 of the Constitution; and, (e) Unjustifiable dismissal of senior public servants who are expected to seek damages for unjustifiable dismissal.

67. That I am advised, and I sincerely believe the advice to be correct, that necessity can only be relied upon if it can be shown that measures taken by the illegal regime were necessary to save the state from disintegration caused by civil unrest or uncontrollable chaos and were in the best interests of the state and its inhabitants. Moreover, I am advised, and I verily believe the advice to be correct, that the extra-constitutional action authorised by that doctrine is essentially of a temporary character and it ceases to apply once the crisis has passed.

68. That as far as the public of Fiji was concerned, there were no civil unrest or chaos or uncontrollable crisis in Fiji or among its people to justify military intervention or removal of government in order to restore civil order. On the contrary, it has been the acts and constant bullying tactics of the First and Second Defendants over the recent years that has always caused anxiety amongst our people, and the First and Second Defendants have in fact been creating the crisis themselves to justify their intervention and unlawful overthrow of the democratically-elected government of Fiji.

69. That I honestly and sincerely believe that the First and Second Defendants were fully aware before they made their final decision to overthrow Government on 5 December 2006 that the circumstances which prevailed in the country at the time were quite different from those which prevailed in Fiji on or about 29 May 2000 when they stepped in to control a state of civil unrest and chaos which were not of their making, and their intervention to control the situation and restore order was in order and necessary for the country. It was then consistent with the application of the doctrine of necessity. I believe that the Fiji Court of Appeal recognise this in its assessment of the situation in their judgment in the Chadrika Prasad case. In contrast, the belief of the First and Second Defendants and their actions as a result of that belief, that a similar state of civil unrest and chaos was abound in Fiji, that necessitated their intervention by removing the elected government as and when they did, were misconceived and represented a gross misunderstanding of the application of the doctrine of necessity.

70. That I sincerely believe that the First and Second Defendants are now simply taking advantage of a necessity of their own making, and that the military coup was instigated by themselves over issues that did not justify a coup, since these issues could and should have been left to be resolved by lawful and democratic processes prescribed under the Constitution and other laws in Fiji. The First and Second Defendants have instead turned this situation into a source of absolute power and authority for themselves.

71. That I do therefore honestly and sincerely believe that the contents of this my affidavit and other evidential materials which will be filed through other Plaintiffs and deponents of supplementary affidavits in support of the Originating Summons filed by the Plaintiffs herein clearly support the making of a declaration by this Court that the reliance by the First and Second Defendants on the doctrine of necessity to justify their removal of the lawful and democratically elected Government of the Republic of Fiji when and in the manner they did were, in all the circumstances prevailing in the country at the time, constitutionally and legally misconceived and unjustified, and therefore contrary to law and the Constitution.

EE: Misconceived role of RFMF

72.That I was aware that the First Defendant had for sometime been justifying his contrast involvement in and opposition to the political policies formulated by my Government during its last term and continuing to the new term commencing after the general elections last year by propagating a position that section 94(3) of the 1990 Constitution is preserved by section 112(1) of the 1997 Constitution. That is to say that the role of the Second Defendant as stipulated in section 94(3) of the 1990 Constitution continues to be its role under the 1997 Constitution, and that is “to ensure at all times the security, defence and well being of Fiji and its people”.

73. That the Vice President, as acting President, directed his Official Secretary to write to the Attorney General by letter dated 18 January 2006 seeking legal clarification of the position taken by the First Defendant. I was amongst those to whom the letter from Government House was copied, and a true copy of the letter is annexed hereto marked as Annexure LQ 22.

74. That I append hereto a true copy of the Attorney General to the request for advice from Government House marked as Annexure LQ 23 which was copied to me. The advice not only represented my Government’s position on this issue, but was also consistent with an advice on the same matter solicited from the New Zealand Government through the New Zealand High Commission in Fiji. The reply from the New Zealand High Commission is annexed marked as Annexure LQ 24. In view of the difficulties I presently face arising from the extremely harsh restrictions imposed by the First and Second Defendants against my freedom to travel to and from Suva, I shall be compelled to seek to file supplementary affidavits on this issue.

75. That by letter dated 1 March 2006, the acting President wrote to the First Defendant tacitly accepting the Government’s position on this issue, and commencing its adoption by the Second Defendant. The letter was copied to me, and a true copy is annexed hereto marked Annexure LQ 25.

76. That I do therefore honestly and sincerely believe that the contents of this my affidavit and other evidential materials which will be filed through other Plaintiffs and deponents of supplementary affidavits in support of the Originating Summons filed by the Plaintiffs herein clearly support the making of a declaration by this Court that the actions taken by the First and Second Defendants in the purported exercise of their powers and roles contained in the repealed provisions of section 94(3) of the 1990 Constitution is unconstitutional and contrary to law.

FF: Unlawful appointment of first interim Prime Minister

77. That the process and procedure for the lawful appointment, removal or resignation of a Prime Minister are clearly set out in Part 3 of Chapter 7 of the Constitution. I can confirm that I had not tendered my resignation as Prime Minister; I had not been defeated on a motion of no-confidence on the floor of House of Representatives; and I had not by any other means known to law or under the Constitution vacated my position as Prime Minister.

78. That in the purported exercise of the President’s executive authority, the First Defendant appointed Dr Jona Senilagakali on 6 December 2006 as the interim Prime Minister of the Second Defendant’s military regime after the First Defendant staged the military coup the previous day. Amongst his initial public statements. Dr Senilagakali announced that he was compelled by the command of his Commander to accept his appointment although he recognised that the unlawfulness of what the First and Second Defendants have done by overthrowing the elected Government. Subsequently, Dr Senilagakali was appointed by the President on the advice of the First Defendant, in the purported exercise of the powers of the Prime Minister as a Minister in the interim regime where he continues to serve.

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