Saturday, March 15, 2008

Illegal Regime Trial

Court yet to rule on 2006 coup trial
26 MAR 2008 -

The High Court has yet to rule on the legal challenge brought by ousted Prime Minister Laisenia Qarase and members of his multi-party Government.

This was confirmed by acting Chief Justice Anthony Gates today.

The ruling will be delivered on notice by the three judges, including Justice Gates, to parties in the proceedings.

The court has to rule on the legality or otherwise of the 2006 overthrow.

Submissions from Qarase’s lawyers Nye Perram QC and Rachael Pepper, defence counsels Gerard McCoy QC and Guy Reynolds QC, and Fiji Human Rights Commission (FHRC) chairperson Dr Shaista Shameem (as amicus – friend of the court), was completed last Thursday.

Parliament still exists: Qarase’s lawyer
20 MAR 2008 -
Fiji’s ousted Government has submitted that Parliament continues to exist and so does Laisenia Qarase as Prime Minister and his Cabinet.

Qarase’s lawyer Nye Perram made the submission this morning during the trial to determine the legality or otherwise of the events of December 5, 2006.

The interim regime he said purports to be acting under the Constitution.

“Mr Qarase is still PM and what happened on December 5 is unlawful. Whatever the emergency was, does not exist anymore.

“The PM is sitting here at the back of the court,” Perram told Justice Dhivendra Pathik, Justice John Byrnes and Justice Anthony Gates.

“Why was Bainimarama appointed PM? We have no evidence from the State on why the appointment was made.”

He said there was no effort made to provide evidence on this.

“Every person in the Pacific knows what happened on December 5 and on January 5, 2007 when the President appointed the person who conducted the coup, to be Prime Minister,” Perram said.

Perram further argued that the President should have used the Chandrika Prasad court ruling which meant that Parliament should have been recalled.

He said there was no need to use the Doctrine of Necessity powers.

He told the court everything ruled in the Prasad case after the coup of May 2000, will be nonsense if the court now rules that there were extraordinary powers used in December 2006.

Perram also questioned the authority of the President to endorse the events of December 5.

He referred to an earlier submission by State counsel Guy Reynolds who said the President was exercising his emergency reserve powers.

That submission, he said is incorrect.

“The ultimate reserve power lies within the Constitution, not the President.”

The trial continues in the High Court in Suva.

Govt’s actions will be reviewed: Ousted MP
20 MAR 2008
A minister in the ousted Laisenia Qarase government says all amendments made to legislations by Fiji’s interim regime will be subject to review when an elected Government comes into power.

Ousted Works minister Samisoni Tikoinasau said given the regime’s unlawful status, they will seek to try and change laws and make colourful improvements to existing conditions, especially regarding the Fijian people to gain support.

“It’s basically geared to gain support since this is one thing they are trying very hard to achieve – support from the Fijian people.

“I don’t recognize this interim regime as having any mandate to tamper with these laws. The procedures that they followed in order to get into the position they’re in today is unlawful,” he said in an interview with Fijilive.

“When the status quo returns in an elected Government, what then? All these actions will be reviewed.

“So we’ll be going back over the same ground when the time comes.”

Tikoinasau added he preferred that the interim regime not change the policies and Acts that are already in place regarding the Fijian people.

He said they must accept the fact that they are there unlawfully and they do not have any legal mandate.

“I think we should all be focused on getting the country back to its legal footing,” he said.

Friday, March 14, 2008

Laisenia Qarase and Josefa Vosanibola outside the courthouse
The President, Ratu Josefa Iloilo, did not have any powers to appoint Voreqe Bainimarama Prime Minister as his "emergency powers were only within the context of the 1997 Constitution".

That was the submission of Nye Perram, who is representing Laisenia Qarase and others in their case against Commodore Bainimarama and others in the High Court.

Mr Perram said the court needed to determine what the Constitution said about the President's "executive powers" and whether it was lawfully applied following the events of December 5, 2006.

He said the Constitution upheld values of the rule of law and it was the role of the judiciary to determine what the powers of other branches of Government were.

Mr Perram said it was clear the Constitution was the supreme law of the land and it established the hierarchy of laws in the country.

He said the High Court had the jurisdiction to determine all constitutional questions brought before it.

He said the Constitution allowed the court to deal with constitutional cases so that the key notion of the rule of law was always guaranteed.

"Section 120 subsection 2 of the Constitution states the High Court has original jurisdiction in any matter arising under the Constitution or involving its interpretation."

He said the Office of the President determined its powers from the Constitution.

"Therefore, the President is a creature of the Constitution."

He said the Constitution stated the executive authority of the State was vested in the President, who was the head of State, commander-in-chief of the Republic of Fiji Military Forces and had powers to establish the office of the Vice-President.

He said the President could only be removed for the inability to perform the functions of the office whether arising from infirmity of body, mind or any other cause like misbehaviour.

Mr Perram said in the absence of a President, "the VP performs his functions and in the absence of both the Speaker of the House of Representatives steps in".

He said Commodore Voreqe Bainimarama's actions "as a soldier to take control of government on December 5, 2006, could never be lawful".

Mr Perram said no provision in the Constitution allowed Mr Bainimarama to be President when he assumed executive authority in December 2006.

"He obviously was not a man helping the country in a crisis but someone justifying his appointments after he sacked people, including the Commissioner of Police and Cabinet ministers," said Mr Perram.

He said the President only acted lawfully on the advice of the Cabinet or the Prime Minister and that he had no powers to exercise on his own.

He said Commodore Bainimarama could never be appointed as PM because he was not a Member of Parliament and that the President had no powers to make that move. He said the Constitution clearly referred to an elected prime minister and Commodore Bainimarama was not and Mr Qarase was still the Prime Minister as he had not resigned and had not received a pension.

"This government is, therefore, unlawful and non-existent, and came to power using a gun and this court has the powers to give the regime its place.

"None of Qarase's Cabinet ministers have resigned as the only way to do so is through writing to the President and it is, therefore, clear that these people were deprived leadership through the takeover, and had applied for pension because they did not have a choice and were under duress," he said.

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