Friday, August 17, 2007

Legally flawed

Last updated FIJI SUN 8/13/2007

The press release given by Interim Minister Epeli Ganilau dated 08/08/07 regarding the purpose of the GCC is legally flawed and erroneous. It is curious that his press release posted in the Fiji Government Online page on Wednesday has already been removed.

He erred when he summarised the purpose of the GCC in his Press Release as:
'Therefore, what this means in very simple terms is that: (1) the GCC is an arm of government, (2) it exists to support government & (3) government is empowered under the law (Cap 120 Fijian Affairs Act) to regulate its operations to ensure that (1) & (2) maintained at all times.'

Whilst (1) is not disputed that the GCC is an arm of government, to claim it solely exists to support government (2) and that government is empowered to ensure that GCC does support the government is erroneous and misleading.

Furthermore, Minister Ganilau's desire to add via regulation the taking of oaths and disciplinary measures is wholly dependent on his legal capacity.

For instance, the reason why the GCC rejected President Iloilo's nominee of Interim Foreign Minister Nailatikau for VP is because the GCC realised that if it approved President Iloilo's nominee it would amount to the GCC condoning the illegal takeover and its illegal Regime.

Minister Ganilau's further intention to insert disciplinary measures to ensure there is no repeat of the above is tantamount to altering the Fijian Affairs Act, which cannot be done via regulation.

This means that even if Minister Ganilau has legal capacity to make regulation, he still needs Parliament and the approval of 9 of the 14 Senate Members of the GCC as defined in section 185(k) of the Constitution to amend the Act.

The reason Parliament only can pass the amendment pursuant to section 185(k) of the Constitution is because it was never the intention of the legislators to entrust all things Fijian to the government of the day.

It was foreseeable that since Fiji was moving towards a democratic system of government, the possibility exists that one day a non-Fijian led government will govern.

This happened in 1999 with the Chaudhry government and there is no legal impedient to prevent further non-Fijian led governments in the future. It would be also natural for non-Fijian led governments to pursue policies in line with its manifesto, but opposed by the Fijians and the GCC.

For instance, a non-led Fijian government wanting to abolish the NLTB, GCC, etc and free up native lands in Fiji would face objection from the GCC; hence the Fijians interest is protected by section 185(k) of the Constitution.
This protection also applies to future Fijian led governments who may want to abolish the NLTB, GCC, etc and free up native lands for sale as well, so the GCC is indeed the depository of Fijian interests and not the government of the day.

To accept what Minister Ganilau is proposing needs to be carefully scrutinised by all 14 Provincial Councils because if it is to take away the independent decision making of the GCC and be a rubber stamp of the government of the day, then it should be rejected outright because it would be tantamount to selling our birthright and genocide of the Fijian race.

I counsel the GCC to work together, carefully scrutinize the proposed changes carefully and test the legal capacity of Minister Ganilau first before considering its intended course of action.

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