Was there conspiracy to pervert course of justice against Qarase’s appeal in Fiji High Court?
In his appearance before the Fiji Court of Appeal on Wednesday 8 April the lawyer Gerard McCoy, QC, representing Commodore Frank Bainimarama, stressed to the three judges that there was nothing between them and the Fiji Human Rights Commission.
Mr McCoy said that while they were impressed with some of the submissions of the FHRC regarding the prerogative powers of the President, he would like to remind the Court that they have nothing between them as the FHRC is just a friend of the court.
FHRC chairperson and ombudsman Dr Shaista Shameem submitted to the Court of Appeal that the President has reserved or prerogative powers to act in the best interest of the nation, and he has these powers at all times and can exercise them when necessary, not only during emergencies.
Despite Mr McCoy’s denial, an e-mail exchanged between myself and Dr Shaista Shameem of the FHRC suggests that in the previous appeal before the Fiji High Court there might have been connection between Dr Shameem and Bainimarama’s legal team in September 2007.
In her e-mail sent to me in September 2007, Dr Shameem writes as follows: “This is about intellectual property theft by the white boys in the AG's office. FHRC came to our conclusions on the December 5th events (which you know as the report Part II), brought it to the attention of the Solicitor General because they did not have a clue how they should go about this case. We then made an arrangement with them that we would intervene on the prerogative issue; he took that and went to Aiyaz and Gerard McCoy, who took our plan and without telling me made a separate application in an interlocutory matter on how the PM did not keep the President informed under section 104; and then when I cried foul, they decided to object to our intervention! This is how it goes here with the white boys and the AG's office. I have of course declared war. You are free to use this information any way you like. The problem is the Tony Gates is a friend (close and personal) of Gerard McCoy and probably wants to make his name in the international constitutional circuit. This is how bad it is here now. Dog eat dog. I am certainly not assisting in the Fatiaki trial- let the cards fall where they shall. My job is the public interest and I did not write my reports for the state. The military council is fully briefed and I don't have any worries.
Best – Shaista.”
I had asked Shameem why the State lawyers were objecting to her appearing as an intervenor before Justices Gates, Pathik and Bryne in the Qarase v Bainimarama case in the Fiji High Court.
On 12 September 2007, the State lawyers had objected to Shameem's application to be a party to the court case in which ousted Prime Minister Laisenia Qarase had challenged the interim administration's existence.
“We can look after ourselves, thank you,” said state lawyers Queens Counsel Gerard McCoy from New Zealand, Solicitor General Christopher Pryde and Australian lawyer Jim Sherry.
Mr McCoy had then told the High Court there was no doubt human rights issues is involved in this case, but his instructions were that they oppose the intervention of a proceedings commissioner.
He said the matter should be left with the primary parties.
Shameem had said Section 37 of the Human Rights Act provided that they could be part of any proceedings where human rights were an issue.
She had said there were significant affidavits like that of Soqosoqo Duavata ni Lewenivanua Party National director Peceli Kinivuwai, whose affidavit was in support of Mr Qarase and others originating summons, which raised human rights issues.
She had added that the Commission's document was part of the annexes and it would mean during trial there might be some issues raised that would give them an opportunity to cross-examine as well.
Mr Qarase's lawyer Tevita Fa had raised concern about the judicial nature of Dr Shameem's recent public statements and the Human Rights Commission Report that she wrote without the approval of the full members of the Commission.
He had asked the matter be adjourned to another date to give them time to object to the intervention.
The Fiji High Court had said it was not worried about the admissibility of the report but rather of the intervening of the Proceedings Commissioner.
Responding to the recent Court of Appeal judgment which declared the 2006 coup unlawful, Shameem blamed Khaiyum and others: “In the Human Rights Commission’s opinion, the Court of Appeal could not have reached any other decision given that the Attorney-General’s lawyers in the appeals hearing alarmingly jettisoned the main legal strategy they had employed in the High Court. This led to a situation where the Court of Appeal made a decision that could not be implemented.”