Thursday, May 24, 2012

Bainimarama’s Behind-the-scenes Backers were in the Judiciary

Posted on Coup 4.5


Doctrine Necessity: Pervez Musharaf


Treasonists Aiyaz Sayed Khaiyum and Mohammed Aziz drafted dictator’s Doctrine of Necessity takeover coup speech, with help from Manasa Vaniqi

 

By Victor Lal

Khaiyum
Aziz
At 6pm on 5 December 2006, Frank Bainimarama, the future dictator of Fiji, declared his takeover of the SDL-FLP multi-party government of Prime Minister Laisenia Qarase. The bleary-eyed Bainimarama, who had been drinking heavily in the RFMF’s Officers Mess before appearing on TV, claimed that he was taking over the Qarase government under the Doctrine of Necessity, a legal doctrine deployed elsewhere, most notably in General Pervez Musharaf’s Pakistan.

Out of stride: Hughes and Bainimarama
However, in the same takeover speech Bainimarama claimed that the RFMF not only believed in the 1997 Constitution of Fiji but it also believed and adhered to constitutionalism. He claimed that he had “stepped into the President’s shoes” (in fact he had illegally stolen the President’s constitutional sulu and sandals) to dismiss the duly and constitutionally elected Prime Minister Qarase.

What of the future? Bainimarama outlined the course of events that were to take place in the next few days after the 5 December 2006 takeover. Let him speak to us: “The takeover will not be permanent; tomorrow I will summon the chief executive officers and charge them with the duty of running their own ministries until an interim government is appointed. During the Great Council of Chiefs meeting next week I will be requesting the Great Council of Chiefs to re-appoint the Turaga na Tui Vuda as the President. His Excellency will then appoint a caretaker government. In the meantime a military council will provide me with advice. When the country’s stable and electoral rolls and other machineries of election have been reviewed and amended, elections will be held. We trust that the new government will lead us into peace, prosperity and mend the ever widening racial divide that currently besets our multi-cultural nation.”

In February 2006, the former Australian High Commissioner to Fiji, Jennifer Rawson, passed to the US Embassy in Fiji copies of two documents that raised concerns about RFMF Commander Bainimarama’s intentions in the run-up to the 2006 planned elections in Fiji.  Both documents were given by the RFMF to the former Police Commissioner Andrew Hughes. 

Dinger
According to Larry Dinger, the then US ambassador to Fiji, it was unclear if Bainimarama meant for Hughes to receive both documents.  He specifically directed his staff to give Hughes only the first, a letter Bainimarama had written to Vice President Ratu Joni Madraiwiwi, dated February 14, 2006, that detailed RFMF complaints against the government and called for the delay of elections until a census was conducted. 

The second document, titled “Doctrine of Necessity,” argued that under certain circumstances extra-constitutional action by the military would be justified.  Hughes had planned to share the documents with his boss, the Minister of Home Affairs, Josaia Vosanibola. The letter from Bainimarama to Vice President Madraiwiwi stated that the RFMF “would like to express its dissatisfaction and disappointment on the general state of affairs in the country.” 

The letter listed a series of complaints about the Qarase led government including: perception of widespread corruption, failure of Fiji’s electoral system, deterioration of the rule of law, and the government’s attempt to destabilise the RFMF. The letter reiterated the point Bainimarama had made to Dinger in February 2006 that unless a census was conducted, the general elections should not be held. Unless there was a census, “the upcoming elections will not be contested on a fair and democratic basis and it will deprive the people of Fiji a truly democratically elected Government.”

Madraiwiwi
The document titled “Doctrine of Necessity” appeared to be anRFMF-prepared think piece on extra-constitutional options and justifications.  It began by referring to the Supreme Court of Pakistan, which after the military takeover in that country, “declared that when the state of affairs in the country deteriorate (sic) to such an extent (crisis situation) where there is no constitutional provision to provide a remedy, extra constitutional measures can be taken under the doctrine of necessity.”  The document enumerated the evidence that the Court relied upon to determine if a crisis existed in Pakistan and noted the Court’s finding that General Musharraf acted for the welfare of the people in taking over the government.

In subsequent pages, the document discussed “the prevailing political, legal and social conditions in Fiji.” It noted that a census had not been conducted, questioned the independence of the Elections Office, and stated that many voters were disenfranchised.  Under “Collapse of the Rule of Law” the document attacked the proposed Reconciliation Bill, stating that it was unconstitutional and would result in amnesty for persons convicted of treason and others not yet charged. 

The document charged that the Supreme Court was biased, and noted a rift in the judiciary.  It stated that “ethnic considerations are now utilised to appoint judicial officers and these have been carried out unopposed by the President of the Fiji Law Society (who is Graham Leung) and the PSC.”  It claimed the government was filled with corruption.  Finally, the document stated the government had attempted to destabilise Fiji’s military forces “by way of administrative action and trying to incite members of the FMF to rise against the Commander and those loyal to him.”

The final page of “Doctrine of Necessity” listed a number of actions to be taken “in the event extra-constitutional steps are taken": appoint interim administration, members of which will not contest the next elections; inform the public as to why such action was taken; give assurances to the business community to ensure stable commercial and economic activity; and seek assistance from the international community in order to undertake a census and electoral reform.”

Police Commissioner Hughes told Rawson he didn’t know if Bainimarama meant for him to see the “Doctrine of Necessity” document, whether it was given to him accidentally, or whether an RFMF staffer intentionally gave it to him without Bainimarama’s orders.  Rawson told Dinger the document clearly was contemporary, since it referred to issues like the census, and the alleged attempt to incite members of the military “to rise against the Commander.” 

The document, at times, used the same wording as the letter to Vice President Madraiwiwi.   On the other hand, the document always spoke of the military in the third person, and referred to the “FMF” instead of the “RFMF” as used in the letter.  Dinger could not say for sure, therefore, that the RFMF drafted the document. 


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Hughes showed the documents to Madraiwiwi on February 16 2006 after Rawson arranged a meeting between the two of them. Madraiwiwi said he had received the letter from Bainimarama, but not the “Doctrine of Necessity” document.  After seeing the latter document, Madraiwiwi told Hughes “if this weren't so serious, this would be laughable.”

It is worth pointing out that when the definitive history of the 2006 coup comes to be written, Madraiwiwi will go down as the principal culprit who acted as the midwife in the birth of dictator Bainimarama. See one of my earlier articles on Madraiwiwi: (http://rawfijinews.wordpress.com/2011/05/25/nailatikau-must-take-bainimarama-by-the-horns/).

He put obstacles in the path of the Qarase government at every stage because Bainimarama had promised him the chiefship of Tailevu before the run-up to the treasonous coup. 
Meanwhile, Hughes told Rawson that, as Commissioner of Police, he felt duty-bound to share the “Doctrine of Necessity” with his boss, Vosanibola. He had not yet done so, because he wanted his police “intelligence section” to do some checking into the document.  Rawson said Hughes would pass the document to Vosanibola “sometime next week”.  Dinger told Washington: “If and when Hughes passes the documents to his minister, the PM will become aware, if he is not already, of Bainimarama's ponderings about removing the Government.” 
In late February 2006, Hughes had a private meeting with Bainimarama where he tried to dissuade him from carrying out a coup, warning that it would be catastrophic for Fiji. Bainimarama rejected Hughes’ view suggesting that unnamed Indo-Fijian businessmen had told him Fiji could bounce back from another coup in 18 months.  
Bainimarama added that he does not care about international reaction, including the possible loss of aid money from Australia, the United States and New Zealand.
The secret memo of the 27th February meeting between Hughes and Bainimarama portrayed an erratic Bainimarama surrounded by a compliant officers corps that was feeding Bainimarama’s sense of righteous grievance against the Qarase government. When Hughes suggested Bainimarama should educate rather than threaten, Bainimarama said education wouldn’t work. The Fijian people “only respond to the stick from us.”
According to Dinger: “The secret report of a late-February conversation between Fiji Police Commissioner Hughes (protect) and Republic of Fiji Military Forces (RFMF) Commander Bainimarama is worrisome reading, with Bainimarama signalling he is willing to remove Prime Minister Qarase and place himself in power if the PM and his party win re-election in May and continue their present course.  Hughes noted (as we have) that the Commander's views in a conversation often vary from benign to a sense that military intervention is nearly inevitable.  Hughes concludes that Bainimarama is distorting and exaggerating the Fiji situation in describing what he sees as a duty to the nation that transcends democratic principles and processes.” 
According to the secret memo, the conversation between Hughes and Bainimarama broadened to the RFMF’s Pakistan-like “Doctrine of Necessity,” put forth as justification for potential military action against the government.
Bainimarama railed against the “evil, corrupt, cannibalistic” Qarase government and expressed regret for putting Qarase in power during the events of 2000. He said he should have retained power himself, for 5, 10, even 40 years. 
When Hughes warned Bainimarama that he (the future dictator) was contemplating “treason,” which would bring him into conflict with the police, the courts and the international community, Bainimarama dismissed such “by the book” concerns as not applying to the Fiji context. 
But who put that infamous “Doctrine of Necessity” Arguments (DNA) into the dictator’s mouth on 5 December 2006? Police intelligence unit investigations revealed that two of the dictator’s co-treasonists, the illegal Attorney-General Aiyaz Sayed Khaiyum and Brigadier-General Mohammed Aziz, with the help from Lt-Colonel Manasa Vaniqi, had prepared the Pakistan-like “Doctrine of Necessity” justification for the dictator to read out on 5 December 2006. Two prominent High Court judges fine-tuned the speech with their legal broomsticks.
In the words of Dinger, who told his masters in Washington, “We are aware some of Bainimarama’s'’ behind-the-scenes backers are in the judiciary. They did their best to make a silk purse out of a sow’s ear.”
The trio (Khaiyum, Aziz and Vaniqi) had escaped conspiracy to commit treason charges before Fiji police could move against them – now, after the coup, Khaiyum is running Fiji as the illegal Attorney-General with his decrees, gloating “Treason doth never prosper. What’s the reason? For if it prosper, none dare call it “treason.”
In other words, although he and others have committed treason and actually succeeded in overthrowing the Qarase government and taking over the country, nobody, according to Khaiyum’s decrees, dare call him and his pet dictator a treasonist, because he’s now the king or dictator and will punish anybody through his decrees who says his actions were treasonous.
But Khaiyum is mistaken; the long arm of the law awaits him, come 2014 election or not! The same applies to Aziz and Vaniqi and others who “did their best to make a silk purse out of a sow’s ear”. As human rights lawyer Imrana Jalal once reminded us: “Flirt with the rule of law at your own peril.”
In the words of Cicero, “A nation can survive its fools, and even the ambitious. But it cannot survive treason from within. An enemy at the gates is less formidable, for he is known and carries his banner openly. But the traitor moves amongst those within the gate freely, his sly whispers rustling through all the alleys, heard in the very halls of government itself…He rots the soul of a nation, he works secretly and unknown in the night to undermine the pillars of the city, he infects the body politic so that it can no longer resist. A murderer is less to fear. The traitor is the plague.”
Again, as Judge Andrew Wilson, while convicting Jo Nata and Timoci Silatou, and which applies to Khaiyum, Aziz, Vaniqi and others, stated: “You were each proven to have committed that crime. Both of you (Nata and Silatolu), together with George Speight and other persons, between 19 May 2000 and 27 July 2000 at Suva and at other places, did commit treason against the Republic of the Fiji Islands and the lawful government thereof. It was a joint enterprise that you were each involved in. There was a common intention held by both of you (and by George Speight) to attempt to achieve an unlawful purpose in conjunction with one another, viz. a coup involving a sudden attempted overthrow of the government by force… Your conduct was destructive of the rule of law itself; it cannot be justified upon any legitimate ground.”

The ringing words of the former High Court judge Justice Nazhat Shameem when she jailed Ratu Rakuita Vakalalabure, who had become the short-lived Attorney-General in the “Speight Government” after the 2000 coup, applies to Khaiyum amd Aziz (both lawyers): “However I cannot disregard the fact that as a lawyer you were expected wisely to counsel those around you. As a lawyer you should have been prepared to fight for the rule of law. Instead you worked with those who destroyed it. Your conduct was destructive of the rule of law itself; it cannot be justified upon any legitimate ground.”
Treasonists Khaiyum and Aziz must not be allowed to play any roles in the shaping of the nation or in the drafting of a new constitution as an escape hatchet; their rightful place is a common cell in the Naboro maximum prison – alongside Bainimarama (wanted for murder of the CRW soldiers) and Vaniqi – and other treasonists. 
That is the only way we can end the coup culture in Fiji. It is also the advice that we should be giving to the two constitutional lawyers of international repute – Yash Ghai and Christina Murray – who have been duped by the treasonist Khaiyum – the author of the “Doctrine of Necessity” document which ended up in the hands of the former Commissioner of Police Andrew Hughes, a copy now in the vaults of the United States State Department.
Any desired changes should be made, if there is a general consensus, within the framework of the 1997 Constitution, and with no promise of immunity to the treasonists. 
We must say with Mahatma Gandhi: “When I despair, I remember that all through history the way of truth and love has always won. There have been tyrants and murderers and for a time they seem invincible but in the end, they always fall - think of it, always.”
A new Constitution must not be allowed to be written or dictated by the megalomaniac and illegal Attorney-General of Fiji – the treasonist Aiyaz Sayed Khaiyum. 
He should be imprisoned under the 1997 Constitution of Fiji that still exists following the Fiji Court of Appeal ruling against the 5 December 2006 coup.

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