Tuesday, April 17, 2007

We can go without a VP

The constitution is silent on the selection of the Vice President by the Great Council of Chiefs (GCC) (Bose Levu Vakaturaga - BLV). We all know that the BLV is the appointing authority. The Turaga na Roko Tui Bau, Ratu Joni Madraiwiwi resigned after the Laisenia Qarase-led democratically elected government was removed in a bloodless coup on December 5 by the military. It was alleged by the Commander of the Republic of Fiji Military Forces now the Interim Prime Minister, Commodore Voreqe Bainimarama, that the Turaga Roko Tui Bau with some senior government officials had prevented the President from exercising his constitutional prerogative to dismiss the Prime Minister in exceptional circumstances. The Bau high chief later resigned but only after he was asked to vacate his official residence. His resignation was handed over to the BLV and accepted.
Section 92 (1) of the constitution stipulates: "If the office of the Vice President becomes vacant, the President nominates for Vice President another person who is eligible to become Vice President and that person becomes Vice President if the nomination is supported by the Bose Levu Vakaturaga." President Ratu Josefa Iloilo had nominated Interim Minister for Foreign Affairs Ratu Epeli Nailatikau as Vice President but this was rejected by the BLV in its meeting last week. The selection was supported by the Tovata confederacy but was rejected by Kubuna and Burebasaga. In a statemet after the President's nominee was rejected the Interim Prime Minister said: "Indeed, I am surprised that Kubuna and Burebasaga representatives at the BLV had ganged up to oppose the President's nomination, especially since the President himself is a paramount chief of the Burebasaga confederacy. The recent call and exhortation by the chairman of the BLV for the chiefs and people of Fiji to unite and work together to take our country forward appears to have fallen on deaf ears among the members of the BLV. "Those who opposed the President's nomination did so for their own selfish motives and vested interests and clearly were not acting in the national interest." Interim Prime Minister Bainmaramna said the rejection by BLV was because the august body did not recognise the Interim Government.
Now that the council has been suspended, we now wonder who will do the honours in appointing the Vice President. Section 88 of the constitution establishes the office of the Vice-President and it further says: "The Vice-President performs the functions of President if the President is absent from duty or from Fiji or is, for any other reason, unable to perform the functions of his or her office. l If neither the President nor the Vice-President is available to perform a function of the President, it may be performed by the Speaker of the House of Representatives." Section 92 deals with the vacancy in office of Vice-President and it says: "If the office of Vice-President becomes vacant, the President nominates for Vice-President another person who is eligible to become Vice-President and that person becomes Vice-President if the nomination is supported by the Bose Levu Vakaturaga. (1) A person appointed as Vice-President pursuant to subsection (1) serves as Vice President for the remainder of the term of office of his or her predecessor. The Vice-President has the authority to perform the functions of President for a period of no longer than three months, pending the filling of the vacancy."
Now that the BLV has rejected Ratu Nailatikau and the Interim Prime Minister has suspended the august body, there is no appointing authority to appoint a Vice President. What happens now? The constitution is silent on the mater and this is another flaw in the 1997 Constitution. Can the President go on with the selection of the Vice President because the BLV has been suspended? The constitution has provided a way out of this but only when the President and the Vice President are not able to perform their functions. In such a situation the Speaker of the House of Representatives can do the honours. We are now in a very difficult situation. Because we do not have a parliament, we do not have a Speaker. The nation needs a Vice President especially when the President is about to go overseas for his annual medical board. Any appointment made by the President at this time will surely be unconstitutional. Can the President use his reserve powers to appoint a Vice President? According to Dr George Williams a barrister and senior lecturer in Constitutional Law at the Faculty of Law, Australian National University, the established rule in Commonwealth nations with a Westminster system of government such as Fiji, is that a 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 Fiji 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 case, the President is said to exercise a reserve power. With the absence of parliament and in such an odd situation the nation is now facing, can the President use his reserve power to select a Vice President? With the suspension of the BLV, the President can use his reserve power. I know if the President uses his reserve power, it can be challenged in court. The only other way out of this crisis is to go without a Vice President until the government reinstates the BLV. The Interim Prime Minister can surely play the role of Vice President when the President is away. In the absence of the President, the Vice President will perform formal functions. He will attend all state functions, receive foreign dignitaries. He or she will sign credentials of the republic's ambassadors and receives those of ambassadors accredited to the Fiji Islands. Surely we can be without a Vice President for the time being. The Office of the President has confirmed the President will soon name a Vice President. If this happens, the legality will be questioned. Already the legality of the President has been queried after the Commander removed him when he took over the executive authority on December 5, 2006. To avoid legal challenges against the appointment of the Vice President by the President at this time, the nation can go without a Vice President until the BLV is reinstated and recognised by the Interim Government. Well I know the Interim Prime Minister and his regime want a Vice President and will surely go ahead with the appointment

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