Wednesday, August 24, 2011

Removing the Illegal Fiji Regime: The Biketawa Option


The Biketawa Declaration has often been touted as an instrument open as an option for foreign intervention to restore democratic rule in Fiji. In the piece below by Victor Lal, he explores it and considers historical precedents and the legal implications arising from it.

For those working to remove the current illegal regime in Fiji, it remains a viable, though politically controversial option. Suffice to note some of the ingredients that would be necessary to trigger its application as a weapon for restoring democratically elected governance back in Fiji.

by Victor Lal



Ratu Tevita Ului Mara's Route to Democracy in Fiji: Tongan led regional military forces under the ‘Biketawa Declaration’ if Dictator Bainimarama and his stooges refuse to step down 


The Bible says: “There will be no remission of sin without the shedding of blood”. 

Introduction

The dictatorial and tyrannical regime of Frank Bainimarama, Aiyaz Sayed Khaiyum and Anthony Gates is on is last E-coli infected legs. Clearly, it has one of two options to choose from: (1) to dismantle voluntarily and hand power to a caretaker government (and hand themselves into “protective custody”) or (2) be overthrown peacefully or need be, violently, through Peoples Power – “A Fijian Spring”. 

Many followers of my regular column in the Fiji SUN, before it became a regime propagandist trash, might recall the following that I wrote on 12 May 2008, while criticising the Fiji Human Rights Commission (FHRC) Report, written by its director Shaista Shameem, that had justified the 2006 Coup 

Restoration by Force of Governments - Historical Cases

What the FHRC omitted to mention, I argued, was that in 1998, the United Nations welcomed, if not authorised, when the Economic Community of West African States forces restored by force, the first democratically elected President of Sierra Leone, Ahmad Tejan Kabbah, who had been forced into exile in neighbouring Guinea following a military coup in May 1997 till March 1998. 

Kabbah’s government was revived nine months later as the military-rebel junta was removed by troops of the ECOWAS, under the command of the Nigerian led forces. He went on to win yet another term in office in the presidential election. It was the second time in recent years that force was used to restore a democratically elected government. 

In 1990, Jean-Bertrand Aristide, the first freely elected president in 200 years ofHaiti’s independence, was overthrown in a bloody military coup. He sought exile in the United States where he campaigned againstHaiti’s new military rulers. His efforts paid off and he was reinstated in 1994 when the military rulers were forced to step down under international pressure and with the help of 20,000 troops, most of them American. 

Like Astride before him, many international lawyers, democracy and human rights activists, and elected governments and UN agencies had welcomed Kabbah’s re-instatement as a salutary milestone towards an enforceable right of democratic governance, and that the international community is willing to regard a body rather than the military-cum civilian government as more truly representative of the state. 

Some international law commentators saw the restoration of President Astride in 1994 as the international community’s willingness “to defend democratic institutions by insuring that democracy prevails in states which have been shaken by violent, illegal and unpopular coups”. 

Regime Change in Fiji: The Biketawa Declaration 

What about the issue of Haiti’s sovereignty, an issue much bandied about in Fiji in regard to the Biketawa Declaration? One international legal scholar argued in 1995: “In modern international law, what counts is the sovereignty of the people and not a metaphysical abstraction called the state. If the de jure government, which was elected by the people, wants military assistance, how is its sovereignty violated? 

And if the purpose of the coercion is to reinstate a de jure government elected in a free and fair election after it was ousted by a renegade military, whose sovereignty is being violated? The military’s? Multilateral intervention in Haiti, in short, did not violate but in fact vindicate Haitian sovereignty – a term appropriately identified with the wishes of Haiti’s people.” 

The same commentator stated: “In circumstances in which free elections are internationally supervised and the results are internationally endorsed as free and fair and the people’s choice is clear, the world community does not need to speculate what constitutes popular sovereignty in that country.” 

We may recall that both the UN and the Commonwealth observer groups had declared the 2006 general elections free and fair, and even the Fiji Labour Party had gone on to become a part of the SDL-FLP multi-party government, a clear manifestation that it had accepted the election result outcome. The party only changed its tune after the coup, and following the highly questionable Fiji Human Rights Commission report into the 2006 general elections. 

Meanwhile, the international legal commentators saw in Kabbah’s restoration to office a likely template for regional organisations to respond to invitations to restore elected governments illegally ousted by military coups. While the UN did not authorise the use of force in Sierra Leone to restore Kabbah, it did not criticize ECOWAS intervention or declare its use of force illegal, conveying the impression that it tacitly disapproved of a military junta which had usurped power at the barrel of a gun and with the help of undemocratic elements of the populace. 

Let us return to the Biketawa Declaration. Could the late Ratu Josefa Iloilo, I asked, have relied on the Biketawa Declaration when dictator Frank Bainimarama went up to him at 11am on 4 December 2006 and demanded “If you are not going to sack the Prime Minister, I will take over the executive authority”? 

Who can Invite Foreign Intervention into Fiji? 

In my submission, I argued, both deposed Prime Minister Laisenia Qarase and President Ratu Iloilo had recourse to invite foreign military intervention, as illustrated in the Astride-Kabbah cases. 

The RFMF, as I have consistently argued, had no right under the 1997 Constitution of Fiji to insert itself, and eventually, to overthrow another legitimate organ of the state, and then go on to confine Qarase on Mavana island on grounds of national security, a security crisis which was unleashed by the military coup. 

The Constitution, I argued, had supremacy over the Military Act. We must not forget that it was the military which precipitated the crisis and then went on to obtain from the President (whether by persuasion or coercion) the validation of its actions. 

In its judgment the Fiji High Court, led by the treasonous Chief Justice gates and his fellow brother judges, while upholding the President’s actions, recalled the observations of Justice Haynes in Mitchell v DPP, saying like in Grenada, there was no suggestion in Fiji that the Head of State was confronted with a situation of mere awkwardness and inconvenience. The crisis was real. 

In Mitchell, Justice Haynes observed: 

  • “We, in the jurisdictions with written constitutions of the Westminster model realise that the Constitution does not and cannot provide for every political situation that might arise. It does not provide for extra-constitutional situations like this one at all. We, in the Caribbean judiciary must do so. We cannot find the solution in English cases. We ought not to look to English judges to decide it for us.” 

What the Fiji High Court judgment didn’t observe, I had pointed out in May 2008, was that the case of Mitchell went much closer to prescribing a form of democratic legitimacy, with Justice Haynes declaring that a revolutionary regime should not be accorded legitimacy unless the court is satisfied that the people are behind it and with it. 

Legality, Justice Haynes stated, should only be achieved if and when the people approve and accept, “for in them lies political sovereignty”. In other word Justice Haynes insisted that not only the people’s acceptance, but also their approval, must be ascertained before legality can be bestowed upon any government. 

Well, applying Mitchell, I argued, neither the President nor his military subject Bainimarama consulted the people between 5 December 2006 and 4 January 2007 while they were stepping in and out of the “presidential shoes”. 

Again, what could have the President done, “let the country go to the dogs”. He, or his independent legal advisers, if he had access to one, could have, I had argued in May 2008, pointed him to that spice island of Grenada, and to the actions of Sir Paul Scoon, the Governor-General and Queen’s representative on that island state, who had his own version of the “Biketawa Declaration” to fall back on following a military coup, when Prime Minister Maurice Bishop, some members of his cabinet and other trusted associates were brutally murdered. 

US Invasion of Grenada 

On Tuesday, 25 October 1983 heavily armed contingents of United States Rangers and Marines, supported by personnel from the Jamaican and Barbados armed forces, invaded Grenada, and despite condemnation from the United Nations, to overthrow those who had seized power. Sir Paul had issued an “invitation” to the Organisation of Eastern Caribbean States (OECS) along with the Governments of the United States of America, Jamaica and Barbados to come to the assistance of the people of Grenada. 

The OECS or “The Treaty of Basseterre”, was signed on 18 June 1981 by the Caribbean states, and came into operation on 4 July 1981. Sir Paul later recalled: “Of all the political systems, I give my vote to democracy without any reservations.” 

We do not know, I wrote, whether President Iloilo flirted with the “Biketawa Declaration” but it was one of only two options open to him: 

  • · foreign intervention or 
  • · his own resignation. 

Whatever he thought on 5 December, he did not have the “Reserve Power” to hand over his “presidential shoes” to Bainimarama on 5 December 2006, two years to the day. 

2009 Fiji Appeal Court Ruling 

Like the “Indian Rope Trick”, I had argued, the Royal Prerogative had disappeared from Fiji when the country had declared herself a republic in October 1987, severing all links with the British Crown. He had to act within the 1997 Constitution of Fiji. On 9 April 2009, the Fiji Court of Appeal agreed with my legal analysis, and declared the following: 

  • · “We do however propose to grant a declaration to the effect that the dismissal of Mr Qarase and the other Ministers of his Government and the dissolution of Parliament was unlawful and in breach of the Fiji Constitution and that the appointments of the Commander as Prime Minister and his Ministers were not validly made. 

  • · “We also propose to declare that it would be lawful for the President to appoint a person a caretaker Prime Minister, for the purpose of advising a dissolution of the Parliament and to give advice to the President that writs for the election of members of the House of Representatives be issues.” 

Fiji Peoples Must Rise Up 

Unlike Ratu Iloilo, the present incumbent President Ratu Epeli Nailatikau has the “Biketawa Declaration” to fall back on. But for that to happen: 

  • the Peoples of Fiji must rise up against the present dictatorship if Bainimarama and his treasonous lot refuse to relinquish power and agree to be taken into “protective custody” for their own personal safety. They will get a fair trial in newly constituted Fijian courts or at the International Criminal Court at The Hague. 

Conclusion

Stone Walls do not a prison make nor iron bars a cage! As for Ratu Ului Mara – he must pursue twin routes – diplomacy and the possibility of joining a Tongan led military force comprising Australian, New Zealanders, Samoans and other forces belonging to the Pacific Island Forum under the “Biketawa Declaration” to give democracy back toFiji. 

The Invasion of Grenada was codenamed “Operation Urgent Fury”. It is time for Mass Civil Disobedience in Fiji if the present regime refuses to step down. And a regional intervention force should be on STANDBY! 

We must remember the ringing words in the Bible: “There will be no remission of sin without the shedding of blood”. 

If the dictator wants to avoid bloodshed in our beloved paradise, he and his cronies must give up power, and soon! 

THUMBS UP FOR DEMOCRACY AND DOWN WITH DICTATORSHIP IN FIJI



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