Commodore Voreqe Bainimarama has handed back executive power to President Ratu Josefa Iloilo. Now its a matter of waiting and seeing whether the President will recognise Qarase as Prime Minister, or repeat the mistake of the 2000 coup and try and replace him with an interim administration (an act subsequently found to be illegal by the Fijian courts). Fortunately, we won't have long to wait; there will be a press conference at 16:00 Fijian time (about now, in fact) at which he will hopefully make his position clear.
Update: The signs are not good; President Iloilo has endorsed the actions of the military and says he will appoint an interim government to hold elections. This will not stand up in court, and I expect Fijian NGOs to challenge it in the near future.
It didn't stand up in court last time, and two elections have taken place since then, which are widely regarded as having produced legitimate governments. Indeed, you are calling for the reinstatement of Qarase. Why not Chaudhary? What if Chaudhary is in the Interim government (as is likely). Does that make it more legitimate? (I'm just playing devil's advocate here.)
ReplyDeleteI've read the FHRC's report and found Shameem's apologetics for military rule pretty appalling, along with her obvious political bias against the "activists" manhandled by the military and the NGOs who protested at the military takeover. The FHRC seems to have taken on a political role, which is outside its mandate.
However, the report does discuss the issues in relation to Fiji's peculiar constitution and I think we need to consider that context, along with the legal decisions so far, when making our comments and criticisms. Fiji's democracy is NOT the same as ours.
I support the reinstatement of Qarase because he had the confidence of Parliament (and I regard the subsequent elections, while flawed, as normalising and legitimising his government). You're right that Fiji's democracy is not the same as ours, but one of the key points of difference is that it is made explicit that the President can not just sack and replace the Prime Minister whenever they want to. S109(1) of the Fijian Constitution states
ReplyDeleteThe President may not dismiss a Prime Minister unless the Government fails to get or loses the confidence of the House of Representatives and the Prime Minister does not resign or get a dissolution of the Parliament.
Likewise, they cannot simply apoint whoever they want. Except in the case of a loss of confidence, they can appoint only "the member of the House of Representatives who, in the President's opinion, can form a government that has the confidence of the House of Representatives" (s98). Any other appointment is illegal, and given that Fiji has constitutional rather than Parliamentary sovereignty, can be overturned by the courts. This is basically what the courts found last time in the Yabaki case - but there had been an election in the interim and therefore the point was considered moot.
(Obviously, I regard Bainimarama's "sacking" of Qarase and "dissolution" of Parliament as having no legal effect).
New development: Fiji Human Rights Commissioner has dissociated herself from the report released today, which was neither commissioned nor sanctioned by the Fiji Human Rights Commission and is presumably the personal opinion of Shaista Shameem.
ReplyDeletehttp://www.fijitimes.com/story.aspx?id=54616
Prominent lawyer Richard Naidu makes a similar point to yours: that based on the logic of the FHRC report, the Chaudhry government was also illegal, since it was one of the governments that followed the 1987 coup. He's very scathing about the report and its author.
ReplyDeletehttp://www.fijitimes.com/story.aspx?id=54613
The current power struggle in Fiji seems to run through every institution and even within ethnic, gender and religious groups (eg, Ali and Shameem are both Indo-Fijian women, and I think both are Muslim). That the differences are political could be seen as a positive development, despite the resort to military force to resolve them. So far, there doesn't seem to be an appetite for a rerun of the ethnic attacks that were a feature of the 2000 coup, or for the religious fundamentalists who egged them on. Progress of some sort!
I've spent some time reading the two judgements in Yabaki v President of the Republic of the Fiji Islands. The High Court ruled that the refusal of the President to recall Parliament in 2000 following the end of the crisis was unconstitutional, but ruled that the subsequent dismissal of Prime Minister Chaudhry, appointment of a caretaker Prime Minister and dissolution of Parliament were justified by the doctrine of necessity and that granting relief would cause more problems than it would solve. The Court of Appeal declared that the election had rendered the entire issue moot. However, "because the situation may arise in the future – hopefully not in the aftermath of a coup" (talk about irony) it did make some comments on constitutional issues, including this bit:
ReplyDeleteThe Fiji Constitution, by the prescriptiveness of s109(1), denies the President such a right [to dismiss the Prime Minister with only "soundings" of the feelign of the House] as that given to the Governor [of Western Nigeria] in Ankitola. Consequently, it did not matter that his soundings may have indicated a general lack of support for Mr Chaudhry or indeed that Mr Chaudhry himself supported a dissolution - albeit with himself as caretaker Prime Minister. The framers of the Constitution appear to have been at pains to circumscribe the President’s power of dismissal of a Prime Minister and to have required the House and not the President to determine whether the Prime Minister has lost its confidence.
This applies perfectly to the current situation; The president can't dismiss the PM and appoint another without either a resignation or a formal vote.
In Shaista Shameem's report (now getting huge coverage in the Fiji media - TV One News reported it last night without any independent analysis or criticism), she gives emphasis to the High Court decision in the Yabaki case, rather than the subsequent Court of Appeal decision:
ReplyDelete"Leaving the actual overthrow aside, can a President or Acting President dismiss the Government given the provisions of section 109 (1) of the Constitution? The provision states that the President may not dismiss a Prime Minister unless the Government fails to get or loses the confidence of the House of Representatives and the Prime Minister does not resign or get a dissolution of the Parliament. The question of whether Prime Minister Qarase lost the confidence of the House of Representatives should be seen in the same light as that which was considered in 2001 when the President Ratu Iloilo dismissed the Labour Government after Chandrika Prasad. According to the High Court judgment in the Yabaki case, the President can decide subjectively and unilaterally whether the Government has lost the confidence of the House and this does not have to be tested on the floor of the House.
"The question for the courts would be whether the events in the last few weeks of Parliament before the takeover in December 2006, amounted to a perception of lack of confidence of the House of Representatives in Government."
She then goes on to list a number of "facts" (which together amount to nothing particularly unusual in the cut and thrust of politics) before restating the High Court decision, then the Court of Appeal decision, and an interpretation of the Court of Appeal decision that does not assume a formal vote in the House is required.
"The High Court in the Yabaki case decided that it was up to the President to decide in his own judgment whether the Government had lost the confidence of the House, explicitly or impliedly. The Court of Appeal said this had to be gauged from the floor of the House itself. The President, presumably, in his own deliberate judgment, decided how this was to be gauged from the floor of the House. Again, the courts will no doubt decide whether this was sufficient to dismiss a Government, according to the Yabaki decisions."
If this is the advice on which Bainimarama based his actions, he (and the government-in-waiting, now beginning to show their faces) is on thin ice.
http://www.fijibuzz.com/Resources/Bills-and-Acts/Fiji-Human-Rights-Commision-Report.html