By Victor Lal
The political show trial of the former deposed but democratically elected Prime Minister Laisenia Qarase is a stage-managed judicial theatre to coincide with the arrival of Yash Ghai the chairman of the Constitutional Review Commission into Fiji, and the electronic voter registration campaign that is in full swing even before the birth of a new constitution.
The judicial diary had been suddenly cleared for Qarase’s trial to convey the message that the dictator carried out the treasonous coup, on 5 December 2006, to stamp out corruption and abuse of office, as allegedly exemplified by Laisenia Qarase.
This is far from the truth. Perhaps a quick reminder would be in order. As Russell Hunter and I have written elsewhere, the $185,000 back pay army chief (thief) had called on his senior officers on three separate occasions to carry out a coup if his contract was not renewed for a further five years. They refused to go along with him saying they were not prepared to commit treason.
As one of the senior military officers, in his personal statement, told the Laisenia Qarase government:
“In my interview with [Bainimarama] he stated that he would forcefully remove the present government if his term as Comd RFMF was not renewed. I advised him that such an act was illegal and amounted to treason. I advised him that there are legal ways to settle his disagreement with government and that he must follow that legal path. Comd said that doing so would take too much time. He said that removing the government would be legally wrong but was morally correct.”
We also disclosed that Bainimarama was behind the 2000 George Speight putsch that resulted in the overthrow of the Chaudhry government and the subsequent hostage crisis that lasted for the next 56 days.
And the mutiny that followed in November 2000 was a result of his betrayal of Speight and others after the signing of the Muanikau Accord. Bainimarama not only deceived the then President Ratu Sir Kamisese Mara, the father of Ratu Ului Mara, to step aside at the height of the crisis, but he also betrayed the “Speight Gang” in order to ensure that the way was now open for him to enter the corridors of political power in Fiji.
FICAC: The Selective Prosecution Machinery
The preponderance of Hong Kong and Sri Lankan lawyers in FICAC and the Fiji judiciary is the handiwork of Aiyaz Sayed Khaiyum and Anthony Gates – abuse of office through their respective connections to Hong Kong and Sri Lanka.
Meanwhile, FICAC and the Prevention of Bribery Law borrowed in large part from similar legislation in Hong Kong. It came into law through FICAC Promulgation No 11 of 2007. Its first prosecutor was the Hong Kong based lawyer Paul Madigan. When FICAC charged Qarase in 2008 with abuse of office offences it was none other than Madigan who flew in from Hong Kong to represent FICAC.
In March 2009 the former Prime Minister Qarase appeared in the High Court and pleaded not guilty before Justice Nazhat Shameem to five charges of abuse of office brought against him by FICAC.
When the legality of the charges was questioned, Madigan submitted that the ant-corruption body was not formed until 2007 so charges against Qarase, dating back to the 1990s, could not be laid until it was formally set up on 4 April 2007.
1997 Constitution torn-up to legitimize FICAC to pursue opponents
We may recall that the former President of the Fiji Law Society Graham Leung had also challenged the legality or otherwise of FICAC before Justice Daniel Goundar. Leung said FICAC was not a legal entity and was not a constitutional body. He said the law setting up FICAC had not been approved by Parliament which was the only body that could make laws under the 1997 Constitution of Fiji.
Again, appearing on behalf of FICAC, Madigan said there were provisions in the 1997 Constitution that allowed for such promulgation to be made. He said he did not wish to dispute the Gates judgment in Qarase vs Bainimarama which had upheld the dictator’s coup.
But there was also the earlier judgment of Justice Shameem which had ruled the FICAC promulgation was lawful. Madigan had represented FICAC in that case before her. In her ruling of 20 March 2009 in FICAC v Rajeshwar Kumar and Jaswant Kumar, both charged with abuse of office (and represented by Rajendra Chaudhary), Justice Shameem had ruled:
“In FICAC v. Inoke Devo  HAC 177D.2007S, an application was made to quash the Information filed by FICAC in this court. No decision had been made at that time in the Qarase v. Bainimarama case. The defence application was that FICAC had no powers to investigate, or prosecute, or to file information in the High Court. In that case I held that in the absence of any promulgation or legislation, anybody or any organization could investigate or prosecute and that the right to privately investigate or prosecute was a civil right, preserved by both the Criminal Procedure Code and the Constitution. FICAC therefore had those rights irrespective of the validity of the FICAC promulgation.
In that case I refused to make orders on the validity of the Government, the ability of the President to promulgate in the absence of Parliament, and the justiciability of the President’s powers to rule. My position on the matter remains the same. There is however one significant difference in the way this application is dealt with today. It is that the High Court (per Gates, Pathik and Byrne JJ) has now ruled on these self-same matters and the case is pending appeal in the Court of Appeal. According to the Court of Appeal calendar, the appeal is listed for the 6th of April 2009.”
Justice Shameem declined to overrule Qarase v Bainimarama. She declined to find FICAC promulgation invalid and of no effect. However, it was not long before the Fiji Court of Appeal overturned the Gates-Pathik-Bryne judgment, declaring that the dictator’s regime was illegal.
Instead of honouring the Appeal Court judgment, the regime abrogated the 1997 Constitution, enabling it to shift the legal goalpost – instead of ordering FICAC to prosecute its opponents under the “Gates Judgment”, it began claiming that FICAC could prosecute because the 1997 Constitution was no longer in existence, and that Fiji was governed under the “Khaiyum Decrees”.
For Justice Shameem’s full judgment, see it on her website: http://lawfiji.com/judgements/pdf/2009_Judgements/2009_High_Court_Trials/FICAC_v_Rajeshwar_Kumar_&_JK_HAC001D.09.pdf
In April 2009, all the judges were removed from office following the abrogation of the Constitution. Many were then re-appointed by the Administration of Justice Decree 2009. Justice Nazhat Shameem did not return to the Bench. She formed her own legal consultancy Law Fiji and among her clients includes FICAC and DPP.
FICAC prosecutor Elizabeth Yang and Qarase Trial
One of the co-counsel FICAC prosecutors in the present trial of Qarase is Hong Kong based lawyer Elizabeth Yang, who along with Paul Madigan had tried to bring trumped up charges against the former Chief Justice Daniel Fatiaki.
Many will recall my two-part investigative report in the Fiji Sun in July 2009, and later reproduced on blogsites, on how Aiyaz Khaiyum, Madigan and Yang had forced a top senior FIRCA tax inspector to pursue deposed Chief Justice Fatiaki over tax irregularities.
The FIRCA tax inspector later claimed to me (which I disclosed in the two part series) that the interim Bainimarama government used Fiji’s tax system to get people for political reasons.
He also claimed that the information he gave Madigan and Ms Yang, was under perceived threat, paving the way for action to remove Justice Fatiaki under the 1997 Constitution of Fiji.
See full story:
While Yang returned to Fiji this month to prosecute Qarase, her FICAC lawyer colleague Paul Madigan was appointed as a judge of the Fiji High Court, and was recently appointed part-time new Commissioner of Independent Legal Services Commission (ILSC), replacing former High Court judge John Connors.
Dictator on the run from string of criminal charges
One of the major demands of the dictator was for Prime Minister Laisenia Qarase to drop all criminal charges against him, for if he did not, the dictator was going to overthrow the SDL-FLP multi-party government.
But Qarase stood his ground, arguing that the dictator should argue his case in a court of law. In a last-ditch effort to prevent Fiji from falling victim to another coup, Fiji’s tough-talking Home Affairs Minister Josefa Vosanibola wanted several countries to slap travel bans on the dictator and police had swung into gear to prepare five charges against the dictator for repeatedly threatening to overthrow the democratically elected multi-party government of Prime Minister Laisenia Qarase.
As Fiji tottered on the brink of a coup, Vosanibola informed his fellow Foreign Minister Kaliopate Tavola on 22 November 2006 of the police plan: “The Fiji Police Force has begun Criminal Investigations and have started laying charges on Commodore Voreqe Bainimarama on a number of alleged criminal breaches he committed in relation to the current impasse facing the nation, and the pending allegations relating to the events of the 2000 coup. From the perspective of the Fiji Police Force, it is in the interest of the nations’ political, social and economic survival that the current impasse be resolved amicably and expeditiously.”
In order to assist the Fiji police, Vosanibola wanted travel bans slapped on Bainimarama: “The Office of the Commissioner of Police has asked that I approach you as Minister of Foreign affairs and External Trade through established diplomatic channels to formally request the Embassies and High Commissions of the following countries (The United States of America, The United Kingdom,, New Zealand, Australia, Papua New Guinea, France, Indonesia, Malaysia) to deny Commodore Bainimarama’s entry into their respective countries by declining the issue of any type of visa to the Commander with immediate effect, until investigations and the Court processes on him are satisfactorily completed.”
The Charge Sheet
The five charges cited by Vosanibola to his Foreign Minister Tavola were:
(1) Disobeying the Lawful Directive of the Minister for Home Affairs and Immigration to stop making public pronouncements on issues, relating to Public Safety, Public Order, and National Security since 18 April 2006;
(2) Seditious public statements that have caused fear and alarm to members of the public from 2004 until today:
(3) Unlawful Removal of a container of ammunition from Kings Wharf Suva on 1/11/2006;
(4) Alleged plot to overthrow the Soqoso Duavata ni Lewa ni Vanua (SDL) led Coalition Government:
(5) Murder of the CRW officers at the Queen Elizabeth Barracks during the Mutiny at RFMF Barracks on 2 November 2000.
On 17 November 2006 the Fiji police invited Bainimarama by a letter to attend an interview on Wednesday 22 November 2006 at 11am. They were advised late that day that he was scheduled to travel to New Zealand for a personal visit at 8.40am out of Nadi on Tuesday 21/1/06.
Police Commissioner Andrew Hughes decided to press for his arrest in New Zealand but the New Zealand police, after at first agreeing that the commander had breached New Zealand law, declined to act.
See “Fiji police chief tried to get Bainimarama arrested in NZ” at the following site:
On 10 November 2006 Vosanibola, while refusing to terminate Hughes contract as demanded by the dictator had stressed to him under the heading, Stop all criminal police investigations against the military officers and investigations against the CRMF:
“Your request to government is a total contradiction of your widely acknowledged principle that “no one is above the low”. It would undermine the general public’s respect for the future of law if special dissipation or selective justice is accorded to military personnel who may have broken the law. Government is in full agreement with your commonly held view that, “justice must not only be done but seen to be done”.
As deposed Prime Minister Laisenia Qarase bravely fronts the High Court, with one of the prosecutors Elizabeth Yang’s character in question, the cassava patch runner and dictator Frank Bainimarama is still on the run – a fugitive from the long arm of the law, and protected by the guns.
The dictator will, as Russell Hunter and I have written elsewhere, dare not dismount the Tiger, for if he does, he risks a life sentence in prison for himself and most of his cronies.
But justice will prevail, and one day the dictator will be in the dock, to face the five charges, and several others since his treasonous coup. And, so will his partners in crime.
He can run but he can’t hide – his days are numbered.
Editor's Note: Qarase's trial got underway this morning and he has pleaded not guilty to the 9 breaches he is accused of.
Editor's Note: Qarase's trial got underway this morning and he has pleaded not guilty to the 9 breaches he is accused of.