Saturday, October 25, 2008

Guidelines and signposts

Guidelines and signposts
By DR SHAISTA SHAMEEM
www.fijitimes.com - Saturday, October 25, 2008

The High Court of Fiji on October 9, 2008 delivered its judgment on the constitutional redress case, Qarase and Others versus Bainimarama and Others
Pursuant to section 7 (1) (m) of the Human Rights Commission Act 10/99, the commission issues the following guidelines for the interim Government and the people of Fiji based on the principles of law determined by the High Court:
(1) The President of the Republic of Fiji, as Head of State, possesses constitutional sovereign powers that can be exercised for the public good.
(2) These powers originate in principles established by common law inherited by Fiji through the British legal system.
(3) In the absence of explicit words to the contrary in the 1997 Constitution, the President, as Head of State, symbol of the Unity of the State, and Commander-in-Chief of the Republic of the Fiji Military Forces, is able to exercise his sovereign reserve powers in certain circumstances.
(4) The President exercised these powers on December 2006 and January 2007. They were in accordance with the advice of the Great Council of Chiefs tendered on December 22, 2006.
(5) The courts can review presidential powers to the extent they are exercised in the public good in a crisis.
(6) The President has authority to make and promulgate laws in the interests of peace, order and good government until the next Parliament is elected.
(7) The Presidential grant of immunity promulgated on January 18, 2007 gave full and unconditional immunity to all disciplined services personnel, the caretaker Prime Minister and the commander RFMF from all civil, legal, military disciplinary or criminal liability, or proceedings or consequences arising from events before December 5, 2006, or on it and up until January 5, 2007.
(8) The Presidential Promulgation of January 18, 2007 nevertheless empowers the State to make ex-gratia payments by way of compensation to any person proved to have suffered any unlawful injury during the course of events.
(9) The case of Qarase and Others versus Bainimarama and Others is different from the case of Chandrika Prasad versus the State because in 2000 the Constitution was removed.
In 2006 the Constitution remained intact and the President remained constitutionally in office.
Different legal principles apply to these different factual circumstances.
(10) All legislation promulgated by the President under direct rule must be considered by the incoming Parliament and require parliamentary assent. In the meantime, such legislation is of lawful effect.
(11) The drafters of the 1997 Constitution did not define the precise circumstances in which the President had to act in the public good.
(12) The President would be mindful of the sanctity of fair elections on the one hand and the need for urgent return to democratic rule on the other.
These 12 main principles, established by the High Court decision, should serve as guidelines and signposts for present and future actions of the interim Government as well as of the people of Fiji.

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