#header-inner img {margin: 0 auto !important; #header-inner {text-align: Center ;} Fiji Coupfourpointfive: Fiji lawyer: Chief Justice can appoint President's successor

Friday, December 17, 2010

Fiji lawyer: Chief Justice can appoint President's successor

The authority of the President (albeit, an  illegally appointed one) has been under the microscope after recent talk that Epeli Nailatikau could disestablish the self-appointed government of Frank Bainimarama. It has since been suggested the regime is moving to empower the illegally appointed Chief Justice, Anthony Gates, to assume the authority of the President, to protect Bainimarama and his hierarchy. A Fiji lawyer (who chooses to be unnamed) explains here that the cunning regime partly did that when it abrogated the Constitution.

One thing must be said at the outset. It is that the President does not have, and should not have, any power to remove a Constitutional government, let alone Qarase’s government and with him as Prime Minister in 2006. This is the essence of democracy which requires the exercise of any executive power by mandate. 

A first year law student, like an ordinary citizen, knows that a Constitutional government cannot be removed, ever, except by the process of an election. As expected Fiji’s Constitution does not vest with the President any inherent powers and he must always act with the advice of the Prime Minister who, rightfully, has the mandate of the majority. The late President Ratu Sir Kamisese Mara's description of his Presidential powers in 2002 was that it was like   “a beautiful flower”, meaning it is purely ceremonial without any independent power.

In 2006, and years prior to that, as it became very clear later, some prominent people in Fiji including the current Chief Justice Anthony Gates, the Shameem sisters (Dr. Shameem and Nazhat Shameem) and the current Attorney General Mr. Kaiyum held the monstrous belief that the President can remove a Constitutional government, other than by way of an election, and amendments can be made to the Constitution without Parliament.

These people were instrumental in giving advice in Dec 2006 to Frank Bainimarama to remove the Qarase government using the office of the President. The rest is history and the names of these individuals together with those who directly support that endeavour, for their own personal reasons, a properly recorded in the annals of Fiji’s history to await their fate later.

The Fiji Court of Appeal’s decision in Qarase V Bainimarama  of 2009 and Jitoko J’s High Court decision in Qarase V Bainimarama & Council members of the Peoples Chater confirmed the obvious. It is that the President cannot remove a Constitutional government and that amendments cannot be made to the Constitution without Parliament. 

The decisions exposed further the rift that had then existed in the judiciary between Justice’s Gates, Byrness and Shameem on the one side and Justice’s Fatiaki, Scott and Jitoko on the other and of how judgements have become very subjective because of it. Former Chief Justice Fatiaki had, in an earlier judgement referred to the rift and animosity that existed, as worse than that which infested the Republic of Denmark in Shakespeare's Hamlet.  

Faced with the dilemma of the Court of Appeal ruling in April of 2009, Bainimarama and his advisers directed the President, Ratu Josefa Iloilo to abrogate the 1997 Constitution. This was accompanied by the usual Decrees that normally follow an unlawful overthrow of power: namely a Decree to restore selected existing laws, another to exonerate the coup makers of their mutinous and unlawful actions, another to provide for the administration of Justice and one to provide for the exercise of executive authority. 

The Executive Authority Decree No.2 of 10th April, 2009 is the one that provides for the powers of the President and the one that he currently uses and follows in making appointments to the government and to cabinet.

The Decree simply says that the President Ratu Josefa Iloilo appoints himself President of the Republic of Fiji. S3 of the Decree says the President shall be head of the state, commander in Chief and head of any government appointed by the Decree and S4 says that until such time as a Parliament is elected in accordance with the Constitution to be adopted, the President shall have the power to appoint a Prime Minister by Decree, to appoint other ministers on advice of the Prime Minister, to make laws for the peace, order and good government of Fiji by the Decree in accordance with the advice of the Prime Minister and cabinet and exercise executive authority.

S6 says the Prime Minister shall keep President fully informed. S8(2) says on the advice of Prime Minister, the President may assign to Prime Minister and each minister the responsibility of the conduct of any part of the business of government.

The Decree did not provide for the appointment of a successor to the President. In July, 2009 before he left office Ratu Josefal Iloilo, most likely by directive of Bainimarama and Kaiyum, passed another Decree to provide for the appointment of his successor. 

That Decree is known as the Executive Authority of Fiji (Amendment Decree No.28 of 2009). S2 of the Decree says that if the office of the President becomes vacant, the Chief Justice under advice of cabinet shall nominate another person to become President. After Ratu Iloilo was removed from office, the cabinet duly nominated the name of the current President who was accordingly appointed by the Chief Justice.

To summarise, as I hope is clear from the above discussion, the President under the 1997 Constitution has no power at all to remove a Prime Minister and his government. After the constitution was abrogated in April of 2009, the President became the head of state and exercised executive authority under the Executive Authority Decree No. 2 of April 2009. Under the Decree he has the power to appoint a Prime Minister by Decree and cabinet as well as to perform other executive powers and authority through the advice of Prime Minister and cabinet. The President’s successor can be appointed by the Chief Justice under the advice of the cabinet.

Pictures: Nailatikau (top) has some power but so does Gates (bottom).


mark manning said...

Basically, the Fiji High Court decision of April the 9th. 2009 was the correct one, the appointment of Frank Bainimarama as Interim Prime Minister was an illegal appointment, but the abrogation of the Constitution which followed, was also illegal, as the President doesn't have the Authority to do that either !
It was after all, " a purported " abrogation only, and just because someone says something, that doesn't necessarily make it so.

You have forgotten to mention in this article, well at least your Lawyer has forgotten to mention, that only the GCC can appoint a President and Vice President !

This seems to be a rather convenient oversight on this Lawyers part and I would have to ask myself, for whom is he batting and why ?

I am 6" 7" tall and have lots of money, but just because I say this, it doesn't make it so !

Another thing not mentioned in this article, is the mental state of the President at the time and his perceived capacity to carry out his Duties.

If at the time, the President took the advice of a man whom he himself had illegally appointed as Interim Prime Minister, as against the Ruling of april the 9th. 2009 of the Legal Authority, the High Court of Fiji, this would suggest to me that every appointment from that moment on as with every decree, is illegal !!!

Anonymous said...

At the end of the day, these people overthrew a government voted in by the people.
That is illegal.
That is wrong.
As far as I'm concerned ALL who gave their names to help this illegal government are complicit. Whether you are Ratu Inoke or Ratu Epeli or Ratu Aiyaz or Ratu Da, you are in the wrong.
And 2 Wrongs can never make a Right.
What I'm even more astounded with is Bishop Mataca and Father what's his name came out to support Bai.
These 2 obviously haven't read their Bible. (May be they belong to that group where Jesus says" You call me Lord, Lord, but I do not know you" Kemu Maleka!).
For these people to think that by supporting the "wrong" they will achieve the "right" results is oxymoronic and shows a level of intelligence more suited to a 2 year old child.

USA said...


US Ambassador yesterday gave interview to radio Australia and said that they want elections in 2011 and non of Franks people will be granted visa to US.

Check out the story people ... as we said stronger sanctions are coming

Anonymous said...

ratu said.
time is coming for ratu epeli to get a boot now
.cj gate will be a white auss president.what a joke.
lession to be learned from 1997 constitution only fjian can be the president in fiji.
now we can have anyone .
nz has fiji indian as govenor general.
this is pure democracy.not fiji.
fiji indian are hard working people and businessman.
we taukei have to learn to work hard.

Anonymous said...

Current illegal prez should just suck gates digoli. he does not have any balls himself. he had the opportunity tpo so but because he is an idiot he can't use his brain.

Another kana loto on tax payers.

Anonymous said...

Thanks but no thanks.

Who is their right mind would want the job anyway? Poisoned chalice - with a passed its used by date.

Don't suppose anybody bothered asking Nailatikau his thoughts - what future part he plays in all this?

Anonymous said...

When you are in 'SELF-PRESERVATION' mode you will do anything and everything to maintain the status quo - especially when Naboro Prison beckons. One day Mufato!!
Why do think Naivalurua was initially appointed COM Prisons??

Anonymous said...

The idiots Mara & Nailatikau ( & Ganilau) were part of the initial movers in this coup.Perhaps they were pinning their hopes on Roko Ului providing the support from the military.Obviously they have been outmanouvred by the gays. When the "elites" are uneducated, they realise that they are worse off than ordinary fools.

Anonymous said...

I just read on Facebook the following message by the "Padre James"...
"A week to go to Christmas and my church members are sad because their employers have told them that since Christmas and Boxing Day public holidays are on 27th and 28th December, they must turn up to work on Dec. 25 or their pay will be cut.... happy birthday baby Jesus indeed.... where is the justice?"

So now even freedom of religion is going ... how many people celebrate Christmas on Dec 27th??

Mere Samisoni said...

It appears there is too much power in the judiciary, away from the people. We are back to square one where the "power" of the people, again, is with the 'elite few" model of the old economic order that did not work. Neither will it work in the market economy of the 21st Century information capital/civilization era because it is not representative of the population.
Dr. Mere Tuisalalo Samisoni, elected member for SDL Party, Lami Open Constituency.

Dr. Mere Tuisalalo Samisoni said...

By the way Hot bread Kitchen (HBK) is celebrating Xmas day on Saturday 25th December 2010, as is our company policy and practice, since February, 1983 when we opened our first shop at Harbor Centre, 27 years ago.
Today with about 30 outlets and approximately 500 staff who are 95% Christians, only a skeleton staff will work on Monday 27th/12.
No one will take away this right to decide and celebrate Xmas by having a day off to spend with family and friends, in the spirit of hope, peace, joy and goodwill towards all peoples.
After all this choice is Devine law by our Maker. In essence this truth is not man made like decrees.
The seasons greetings to one and all as well as those who persecute us.
Mere Tuisalalo Samisoni

Anonymous said...

ratu said vinaka mere.but pay your workers well.
than talk about god marama.
i thin you were one member that made sdl govt fall with people like qoroniasi bale,tui cakau/maramabale rewa ro t kepa.what happen now all supporting frank govt now.vinaka na liumuri taki.
so my advise forget all this bs now.

Anonymous said...

Devine Law MEre Samisoni is that Saturday is God's Holy Seventh day which is the Sabbath day. The true Sabbath day according to the Law of God. X-mas day is actually a man-made tradition.

mark manning said...

I'm always confused about on the 1st. day he made heaven and earth !
In order to have a day at all, you need the earth spinning on it's own axis around the sun, yet there was nothing to start with, so it's obviously not meant to be taken literally !

Anonymous said...

Let me clarify it for you mm. God said, "Let there be light...", and he separated light from darkness and called light, day, and darkness, night, and that was the first day! Genesis 1:3-5.
Obviously for this illegal government, there is only darkness.

Anonymous said...

The names of the days are in some cases derived from Teutonic deities or, such as in Romance languages, from Roman deities. The early Romans, around the first century, used Saturday as the first day of the week. As the worshipping of the Sun increased, the Sun's day (Sunday) advanced from position of the second day to the first day of the week (and Saturday became the seventh day).

Anon 6.10pm should be reminded that Saturday is derived from the Roman name of the day in which they worshipped Saturn, a celestial deity. In fact, Saturday was worshipped on the first day and Sunday the second day of the week. As the worshipping of the Sun increased, Sunday was advanced to the first day and Saturday to the seventh day as we know it today.

Like Christmas, we should not get carried away by legalistic trivia but celebrate the essence of Christ who is after all our only salvation.

Merry Christs birthday to you