Tuesday, March 24, 2009

FICAC declared legal, questions linger

FICAC declared legal, questions linger
www.fijilive.com - 24/03/2009
Sai Comment:
-There will always be doubt unless and until a properly convened court with judges untainted by the 2006 coup is convened to retry the Qarase case. The people of Fiji will expect nothing less and no doubt look forward to it happening when democracy returns to Fiji and the courts are once again held in the highest regard by citizens. Otherwise doubt and lack of confidence will persist. I personally support Grahan Leung in his argument about the status of the President's reserve power and disagree with the Shameem interpretation and that of the judges who ruled eralier in the Qarase case.

The High Court in Suva has dismissed an application by Suva lawyer Rajendra Chaudhry to declare the Fiji Independent Commission Against Corruption (FICAC) illegal.Chaudhry had filed an appeal that FICAC had no jurisdiction and was an illegal body, while defending former Nasinu mayor Rajeshwar Kumar and town clerk Jaswant Kumar against FICAC’s charges of abuse of office.The ruling by Justice Nazhat Shameem has been made as Suva lawyer Graham Leung today again claimed in a separate case, that FICAC was “conceived out of illegality and was still born”.Defending former Airports Fiji Ltd chief executive officer Sakiusa Tuisolia against abuse of office charges, Leung argued that the law setting up FICAC had not been approved by Parliament, which he said was the only body that could make laws under the Constitution.He said FICAC was promulgated under the President’s reserve powers, the source of which had been broken when Fiji gained independence from Britain. The President, he said, no longer had the reserve powers of the Queen of England. However, while quashing the appeal against FICAC’s legality by lawyer Chaudhry, Justice Nazhat Shameem said the question of the President’s legislative powers had now been judicially determined.“Until and unless the decision of Qarase v. Bainimarama is set aside on appeal, the FICAC promulgation is valid and must be given effect by the High Court and the Magistrates’ Court. It is not for this court to conduct an enquiry into what the President thought he was doing when he wrote the following words in the preamble of the Promulgation, “In exercise of the powers conferred upon the interim government and upon the exercise of my own deliberate judgment …… and with the approval of Cabinet, I Josefa Iloilovatu Uluivuda, President of the Republic of the Fiji Islands hereby make this promulgation.”“It appears, from the wording of the preamble to the FICAC Promulgation, that is precisely what His Excellency did when he signed it,” said Justice Shameem.She said: “I decline to overrule Qarase v. Bainimarama. I decline to find the FICAC promulgation invalid and of no effect.”Rajeshwar Kumar and Jaswant Kumar are alleged to have cashed a Nasinu town council cheque of $2,344.42 they allegedly made out as payment to Post Fiji Ltd.

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