Thursday, April 09, 2009

The Question Of Legality-Fiji Appeals Court Judgement

The latest Appeal Court ruling has been made. Full Appeals Judgement.
What is rather bizzare is the Australia Acting Foreign Minister, calling on the Interim Government to respect decision; however before the actual Appeal, it was Australian Bar Associations among others that raised unfounded doubts regarding the judiciary and even warned other would be appointees, about taking office in Fiji, as published in The Australian.
What happened to their doubts post Appeals Court Judgement?

The excerpt of the Australian article:

ABA cautions lawyers on taking judicial office in

Chris Merritt, Legal affairs editor March 13, 2009
Article from:
The Australian

THE Australian Bar Association has warned lawyers to be wary about accepting judicial office from Fiji's military-backed government because their appointments could be seen as tainted.

The warning, from ABA president Tom Bathurst QC, comes soon after the International Bar Association raised doubts about the legitimacy of judicial appointments in Fiji since the 2006 coup. The IBA's concerns are outlined in a damning report by the organisation's Human Rights Institute that says the rule of law has been steadily deteriorating in Fiji since the coup. Mr Bathurst said the report
was in line with the ABA's own concerns. Anybody who might be considering
accepting judicial office in Fiji "ought to have a good read of this report before they do so", he said.

"Much as you might like to assist these countries, it is very difficult when on an objective view it could be seen as a tainted appointment. "People have got to look very hard before they take these appointments. They are superficially attractive but they have huge problems." The IBAHRI report says the military-backed regime "has taken steps to influence, control or intimidate the judiciary and the legal

"The interim regime, apparently allied to some members of the
judiciary, the legal profession and the Fiji Human Rights Commission, have
attacked those members of the judiciary and the legal profession who have
attempted to defend human rights and the justice system," the report says.
Judges who have been appointed or promoted since the coup have heard cases
that relate to the constitutionality of their own appointments, the report says.

It says the regime has tried to silence critical news and comment, has deported
expatriate publishers, has misused proceedings for contempt of court and
altered the membership of the body that nominates judges to the bench -- the
Judicial Service Commission.

One of the judges who has been singled out for criticism in the IBAHRI report is Melbourne barrister Jocelynne Scutt (see accompanying report). The IBAHRI also says the appointment of Fiji's new Chief Justice, Anthony Gates, an Australian citizen, needs to be reviewed to determine if it breaches the Fiji constitution. Justice Gates, who is British born and Cambridge-educated, was a magistrate at the time of the 1987 coup that had been led by military strongman Sitiveni Rabuka.

After he refused to swear an oath of allegiance to Colonel Rabuka, he and other judicial officers were dismissed and he spent almost five years in Brisbane as a public prosecutor. Chief Justice Gates has held his current position since December. He was previously acting chief justice, a title he had held since chief justice Daniel Fatiaki was suspended soon after the coup.
Charges were laid against Chief Justice Fatiaki that were dropped late last year as part of a "settlement" in which he agreed to resign as chief justice and was given $F275,000 by the military-backed Government.

"The suspension by chief justice Fatiaki by the military regime should be condemned by all supporters of the rule of law, particularly given that all charges were eventually dropped and a large settlement payment was made by the regime," the IBAHRI says. The report has found that it is "questionable" whether the appointment of Justice Gates as the new Chief Justice is constitutional. "The IBAHRI also considers that there are doubts about the validity of appointments made to the bench since January 2007," the report says.

It says those doubts are likely to continue because of changes the military-backed Government has made to the Judicial Service Commission.

The report says a number of vacancies are due to arise on the Fiji Supreme Court but
says it appears there is no way "unquestioningly legitimate" appointments can be
made to those vacancies because "a nomination will be perceived as compromised
by the method of appointment". The IBAHRI recommended that no more judges
should be appointed by the regime in Suva until democratic elections are held.
It says there are sufficient concerns about the Fiji judiciary "to
constitute a reasonable doubt about a lack of judicial independence within the
current Fiji judiciary".

It recommends that the Fiji judiciary respect freedom of expression among the media and the legal profession. Mr Bathurst endorsed the IBAHRI's report and said very senior members of the judiciary in Australia and New Zealand had "quite rightly" either declined to serve on the Fiji bench or had allowed their commissions to lapse.

Bloomberg article excerpt:

Australia Presses Fiji to Hold Elections After Court Ruling

By Michael Heath

April 9 (Bloomberg) -- Australia pressed Fiji’s military government to hold elections after the Pacific island nation’s Court of Appeal ruled a 2006 coup was illegal.

Acting Foreign Minister Simon Crean welcomed the ruling, which also called on the president to appoint an interim leader to oversee a ballot, and said the government must respect the court’s decision.”

Fiji’s Attorney-General Aiyaz Sayed Khaiyum said a dangerous vacuum would be created if the government relinquished power and signaled it would appeal the decision, the Associated Press reported.

Commodore Voreqe Bainimarama deposed Prime Minister Laisenia Qarase with the support of his 3,500-strong army in December 2006, accusing the government of corruption.

The takeover was Fiji’s fourth coup in 21 years. It damaged the country’s tourism and sugar industries and spurred Australia and New Zealand to impose travel bans and sanctions. A corruption commission set up by Bainimarama also charged Qarase with abuse of office, an allegation he has denied.

Bainimarama, who is interim prime minister, is under pressure from Australia, New Zealand and other Pacific nations to hold elections by the end of the year.

Crean said today’s ruling “underlines that the dismissal of Prime Minister Qarase was invalid.” The government should restore democracy through elections as early as possible, Crean said, adding Australia would be ready to provide “considerable assistance” to ensure the ballot is successful.

To contact the reporter on this story: Michael Heath in Sydney at

Last Updated: April 9, 2009
03:06 EDT
Fiji Times (F.T) article, quotes from the Interim Prime Minster. The excerpt of F.T article:

Fiji's without a government: Bainimarama
Thursday, April 09, 2009
Update: 7:24PM

FIJI has no government in place as it awaits the President's decision on
his next course of action, said Commodore Voreqe Bainimarama in a televised
address to the nation moments ago.
He said the Fiji Court of Appeal's declarations meant that "we effectively do not now have a prime minister or any ministers of the State; in other words we do not have
government in place".

The former interim prime minister said the country now had to wait for the President to decide on his next course of action.
"I want to assure you all that I, as Commander of the RFMF, together with all the security forces, shall ensure that there will be no disruption to law and order," he said. "His Excelllency shall inform us of his decision soon."

One legally trained poster "Real Jack" outlined what the judgement means, and the legal avenues available and the course of actions, derived from such a decision.
Other reactions to the Appeals Judgement was varied. One such thread regarding the judgement was from Fiji Exiles Board forum
The excerpt of the posting:

Well crafted Declarations by Court of Appeal

just heard the Declarations over the TV - the Court of Appeal has set down a very well crafted set of declarations. they say
  • (a) the events of December 2006 are invalid; BUT
  • (b) the laws and work done since then by the regime are valid, subject to
    any determination being made othewise (i.e through the courts on a case by case basis) OR as and when parliament reconvenes and determines the laws and actions
  • (c) they recomend that the President appoint a caretaker Prime Minister OTHER THAN the parties to the case to dissolve parliament - and this is the beuty part - they haven't stated that Rt Epeli Ganilau or Nailatikau or Filipe Bole or any of the other current members can't be appointed caretaker PM - lol - nor have they advised that Chaudary can't be caretaker PM to dissolve parliament -so the President can appoint anybody he chooses from inside the 2006 parliament to give that advice and sign the dissolution of parliament -

this is exactly what the Tui Nayau did in 2000 - appointed Rt Tevita Momoedonu as PM for 15 minutes just to sign the dissolution. then that interim PM appoints a caretaker government to go to elections - and the Court has not said that FB can't be part of that interim government AFTER that dissolution has been properly effected. they may have done it illegally in 2006 - but after doing a proper dissolution now as per the Declarations of the Court, they will be kosher and legal. this is a smoothly crafted judgement - very slick.

its so wide open and flexible it allows for structuring of outcomes WITHIN the legislative and constitutional framework to go forward. the President should follow the Declarations (even if it doesn't name him as a party to the proceedings) - appoint an interim Prime Minister for 15 minutes i.e Chaudary or someone else to declare a dissolution of parliament - and then constitute a caretaker government and have FB & Co resworn to take the country to elections - and implement the reforms in the process - these laws are not invalidated by today's Declarations - the Court has made that very clear - which essentially means the reforms can proceed. and there is no timeframe on when elections should proceed - thats a prcatical and political decision - the Writs can be issued, but whether the country is ready for elections is a practical
issue which then follows. its a very good flexible Judgement.

too good - they realise the possibility of a coup d'etat to abrogate the 1997 Constitution AND SO they have basically presented the way forward flexible enough to take on board everybody's concerns and manouver a legal way through.

i don't know what Pryde is trying to do with an appeal - these Judges of the Court of Appeal have presented to him the whole thing on the plate - he can refit the jigsaw as he likes now - its his playground - get on down and play - start structuring - they have set down the parameters so that when he refits the jigsaw, its kosher - legal. these Judges are good - too good.

Real Jack continues in another post, in the same thread about how Qarase is misrepresenting the ruling, as seen in a Fiji Times article.
The excerpt of Real Jack's posting:

Regime should publish the judgement in the Dailies in all languages

Qarase is now back to his old game - he is now misrepresenting the judgement - just heard him on Fijian radio saying that the Court of Appeal has determined that the events of 5th December are illegal. full stop. what the regime should do is publish the judgement in all the Dailies in Fijian, Hindustani and English showing CLEARLY and UNAMBIGUOUSLY what the Court of appeal actually said IN ITS TOTALITY.

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