Thursday, October 04, 2007

Who will bear the cost?

September 26th, 2007

Legal challenges against the interim government are mounting.

And they will surely be very costly.

Who will bear the cost?

Soon after the removal of the Laisenia Qarase-led government on 5th December 2006 in a bloodless coup, may questioned the legality of this action.

We know the commander of the Republic of Fiji Military Forces, Commodore Voreqe Bainimarama, in his first public address after the coup said their action was legal as they used the doctrine of necessity.

However, former Vice President Turaga na Roko Tui Bau Ratu Joni Madraiwiwi said: “No coup against a democratically-elected Government can ever be justified, unless the regime concerned is inflicting genocide or some other heinous crime against its own people.”

We now face a very difficult situation.

We have the 1997 Constitution in place but we are governed by a government not elected by the people.

This Government is making laws and makes references to the 1997 Constitution.

The Interim Government, while it has not publicly said that it is illegal, is working tirelessly to return the country to parliamentary democracy.

During the takeover Commodore Voreqe Bainimarama publicly announced that the military’s action was in accordance with the constitution. He used the doctrine of necessity.

According to Dr Brij Lal for the ‘Doctrine of Necessity’ to be enforced, “an imperative necessity must arise because of the existence of exceptional circumstances not provided for in the Constitution, for immediate action to be taken to protect or preserve some vital function of the State. There must be no other course of action reasonably available” and any such action must be reasonably necessary in the interest of peace, order, and good government.

“But it must not do more than is necessary or legislate beyond that. It must not impair the just rights of citizens under the Constitution and it must not be one the sole effect and intention of which is to consolidate or strengthen the revolution as such.

“Clearly, then, the ‘Doctrine of Necessity’ only applies in cases of extreme emergencies - civil strife, a calamitous natural disaster, massive breakdown of law and order - when the duly elected government of the day is unable to govern. It is to be the last resort in the absence of any other option. In 2006, the Fijian state was under no fatal threat.”

Prominent lawyer Graham Leung said: “While it (the military) professes that the Constitution of Fiji is intact and has not been abrogated all the signs point to grave departures from constitutional procedures that are corroding the lawful and proper governance of Fiji.”

We have our own interpretation on the legality of the bloodless coup

Here in Fiji a democratically elected government was forcefully removed by the military in a bloodless coup.

In democracy, a democratically elected government can only be removed in a general election where voters show preference for another new government.

The military action has been condemned by the international communities.

After nine months in power, the military-backed Interim Government has used all sorts of legal terms to legitmise its action.

However, it is comfortably leading the country using the President’s mandate.

Announcing the formation of an Interim Administration, President Ratu Josefa Iloilo outlined what he would call the ‘President’s Mandate.’ This included upholding the constitution, facilitating legal protection and immunity from both criminal and civil offences for the military, recognising the right of the military to suspend, dismiss or remove from office anyone it thought appropriate, steadying economic growth and ‘correcting the economic mismanagement’ of the previous government, restructuring the Native Land Trust Board to ‘ensure more benefits flow to the ordinary indigenous Fijians,’ creating an anti-corruption unit in the Attorney General’s office to eradicate systematic graft, introducing a Code of Conduct to improve ‘governmental and institutional transparency,’ and preparing Fiji for democratic elections ‘after advanced electoral office and systems are in place and the political and economic conditions are conducive to the holding of such elections.”

Dr Lal said: “In the Westminster system as adopted in Fiji, the President acts on the advice of the Prime Minister as the head of an elected government. The power that the President exercises in ‘his own deliberate judgement’ is carefully prescribed and limited, to be used in exceptional circumstances and then only for short periods of time. The proper course of action for the President to authorise would have been the prompt restoration of the deposed government. But illegal and improper though it was, the military and the Interim Administration recited the mandate as their overarching charter. The mandate became its mantra of legitimacy. Just as the President’s mandate was misconceived, so, too, was the legal principle the military invoked to validate the overthrow of the Qarase government.”

Now legal actions have been filed against the interim regime. The first to be heard is on the legality of the military takeover.

While ousted Prime Minister Qarase is paying for his own legal fees and this includes the hiring of a Queens Counsel, the Government is hiring two QCs, Gerald McCoy and Guy Reynolds.

Attorney General Aiyaz Sayed-Khaiyum has asked for $270,000 in legal fees for those two alone. Travel, accommodation and support staff (at least two at $1,000 a day) will push the final bill much higher.

The Finance Ministry has already issued the $270,000 cheque to the Attorney General’s office.

Mr Khaiyum says the state has sought a number of eminent lawyers to represent it and $270,000 is needed to engage the counsel.

Ousted Minister for Labour Kenneth Zinck who is now representing part of the workers at the Fiji Islands Revenue and Customs Authority (FIRCA) has expressed disappointment at the allocation of $270,000 of taxpayers’ money for the Interim Government’s legal fees to defend the law brought by Mr Qarase.

He said the interim government should have directed the $270,000 to nurses, who had gone on strike earlier this year disputing their five per cent pay cut.

Mr Zinck said, the December 5 coup, was not an intention of taxpayers and they should not be burdened by the legal fees of the Interim Government.

“This is a lot of money,” said Mr Zinck.

Ousted Opposition Leader Mick Beddoes said: “I do not think taxpayers should pay any cost to defend a regime that comes into being by force. On the other hand they have been using taxpayers’ money for the past nine months without being accountable to the people. So they are going to use it anyway so perhaps if they lose the case then the cost must be passed on to the individuals named in the action And they should be made to pay.”

Is it really fair that the taxpayers should pay for the legal fees resulting from an action that they had never given their consent to?

Should those involved pay instead?

This is just the first case and there are many more to come.

The next one concerns the Fiji Independent Commission Against Corruption.

FICAC legislation was enacted by the President under section 84 of the Constitution which normally vests executive power in him.

However, it now seems the Interim Government does not seem to bother about the legality or illegality of the events of December 5. Commodore Bainimarama has said repeatedly that everyone should accept the reality of what happened and ‘move on.’

However it is time that it should be serious on the mounting legal cases and the costs.

It is a fact that court costs will be in the millions.

(From Fiji Sun)

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