Musings on Fiji

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Victor Lal was educated in his native Fiji Islands and at the University of Oxford and specializes in conflicts, coups and constitutionalism in multi-ethnic states. He was Reuters, Wingate and Research Fellow at Oxford. Victor Lal was Honorary Research Fellow in the Department of Scandinavian Studies, University College, London, Guest Nobel Fellow at the Norwegian Nobel Institute, and was an associate researcher on 'Project 1905: Swedish-Norwegian Relations for 200 Years', hosted by the University of Oslo. He has held visiting fellowships in Norway, South Africa, Australia and Fiji Islands. Among his publications include Fiji: Coups in Paradise-Race, Politics and Military Intervention and a forthcoming book Towards a World Without War: Andrew Carnegie, Peacemakers and Nobel Peace Prize, 1901-1951. He is completing a book on East African Indians and the Mau Mau Rebellion in Kenya and the biography of Justice Ransley Thacker, the judge who jailed Jomo Kenyatta. In 2008 Victor Lal was co-winner of Fiji’s prestigious Robert Keith-Reid Award for Outstanding Journalism.

Thursday, June 14, 2007

Security forces pose biggest threat to democracy: Chaudhry

The coup culture in Fiji, the Interim Finance Minister Mahendra Chaudhry recently told India, was part of the political process, which he hopes will be eradicated when we return to democracy. Back home, the Interim Government has embarked on finding the causes of the coup culture, and how a stop could be made to it. Maybe, it should begin by interrogating the views of one its own – Mr Chaudhry who, in 2002, wrote up a detailed thesis on the coup culture in the country. His views titled “The Aftermath of a Coup: Power grabs and destabilization in Fiji” are contained in The Parliamentarian, the journal of the Parliaments of the Commonwealth, and the views were expressed after he was overthrown in part-Fijian George Speight’s 2000 coup.

Mr Chaudhry contended that the security forces posed the biggest threat to the stability to any democratically elected government in Fiji. The people of Fiji, he reminded his fellow Commonwealth parliamentarians, had been victims of three military coups to date. “The events of the past two years in particular have shown that neither the police nor the army can be trusted to uphold the constitution and maintain law and order. No elected government that is not of their choice will ever be safe in this country if this situation is allowed to go unchecked,” he wrote. Indeed, unless this situation is negated, he claimed, “Fiji will simply become another Indonesia where the military has formed an oligarchy with allegedly corrupt politicians and business interests”.

He claimed in his analysis that the Fijian army was split along provincial loyalties, was ethnically biased and some from among its ranks had allegedly become dangerous mercenaries. Mr Chaudhry maintained that the military had maintained a power bloc with corrupt politicians, unscrupulous businessmen and factional groups from the three Fijian confederates and the provinces to ensure that the held the reins of government, irrespective of who won the elections. He even claimed that the Fiji Police Force had been infiltrated by the army and could no longer be trusted to maintain law and order. The whole issue of security, he claimed, had racial overtones. Indo-Fijians and indeed Indo-Fijian politicians could no longer trust either the army or the police. “Racial parity both in the police force and in the army is, therefore, imperative,” he said.

What about the role of Commodore Frank Bainimarama in the 2000 crisis? In the same issue of The Parliamentarian the recently deposed Prime Minister Laisenia Qarase had expressed his own views about the reasons for the coup culture in Fiji under the title “Rebuilding peace, stability and prosperity in Fiji”. Typically, he had defended the attempted coup in the now famous “Tagi ni Taukei” theory. According to him, on 19 May 2000 he was visiting one of the country’s outer islands as chairman of a select committee of the Senate when “suddenly someone came rushing into the meeting room to relay a radio report about an attempted coup in the capital Suva”. The news, according to him, stunned the committee members, and they were all filled with apprehension about the consequences for the country. In a set of circumstances Mr Qarase could never have imagined, he was asked to take a leadership role in steering Fiji back from the brink.

According to Mr Qarase, the military took action to protect the safety and security of citizens and the integrity of the state. It was never, he claimed, their intention to form a permanent military government. They were committed, especially, to ensuring Mr Chaudhry and other hostages were freed unharmed. They succeeded in that after very complex negotiations. He pointed out that the army returned to the barracks at the end of 2001, when the National Security Council judged that law and order had improved to the point when the police could again resume their normal role.

Reflecting on the first days after 19 May 2000, Mr Qarase told his fellow Commonwealth parliamentarians: “I followed the drama of the insurrection closely, as a citizen very much concerned for his country. Fiji was experiencing an unprecedented ordeal and when the army moved I felt it had an opportunity to bring back order and help people to feel safe in their homes again. But at no stage did I think I would be called on to play a part in the saving of the country.” As we know, Mr Qarase’s whole career had been in the civil service, development banking and commercial finance.

According to him, in early June, Commodore Bainimarama asked him if he could give financial advice to the military administration. “I did not hesitate. In my view-and that of many others-the army was motivated out of concern for the country. It gave hope when all was darkness. It was not long after this that I was asked by Commodore Bainimarama to head an interim civilian cabinet with freedom to appoint Ministers of my choice. There was a more difficult decision to make here. Acceptance meant giving up a well-paying and secure post as Managing Director of Merchant Bank. I would be moving into an extremely volatile and possibly dangerous political environment. I had my wife, children, and grandchildren to think about. They were central to my life,” Mr Qarase wrote.

But the love of Fiji and her hour of need made Mr Qarase accept Commodore Bainimarama’s offer to become interim Prime Minister. The interim military administration soon gave way to an interim civilian government. Commodore Bainimarama invited the Great Council of Chiefs to appoint a civilian President. They duly appointed Ratu Josefa Iloilo, who had served as Vice-President to the ousted President Ratu Sir Kamisese Mara. Looking on his appointment, Mr Qarase wrote: “Of course, there were some loud protests about the fact that we were unelected. The protestors found it difficult to accept that in the Fijian environment at that time, it was simply not feasible for the ousted government to return to office. That would have led us into even greater difficulties. Emphasis on legal and constitutional niceties might have played well in certain overseas forums, but in 2000 they had little relevance to the reality of our position. The constitution had become just a piece of paper. We need pragmatism and common sense to help us move forward.”

Mr Qarase also pointed out that the civil service had stayed solidly intact as a neutral and independent body, the Reserve Bank was vigilant in maintaining financial stability, and the judiciary dispensed justice; the court remained open. There was, however, division among the judges, he conceded, over the actions of Chief Justice Sir Timoci Tuivaqa, who later spoke of fundamentally differing perceptions of the rule of law, separation of powers and judicial independence at a time of dangerous and confusing crisis. According to Mr Qarase, the former CJ “acted to preserve the judiciary because without it, Fiji would have moved closer to total collapse”. “My Interim Administration fully supported the actions he took. Pragmatism and common sense in safeguarding the well-being of the state and all its citizens clearly constituted the right approach to take in the circumstances. Those who favoured a strictly legalistic approach were out of touch with reality. Sir Timoci, in my view, has been vindicated,” Mr Qarase asserted.

Someone asked Mr Qarase whether the response of the international community had been helpful in Fiji’s endeavours to put our situation right. He answered as follows: “I have said that we always felt we had the ability to solve our own problems, in our own way. We appreciated those countries which understood this, who gave us space and did not try to pressure us.” Ironically, the alchemy of exile, and the loss of political power have forced the deposed Prime Minister Qarase to sing to a totally different tune from his native Mavana Island in Lau. He is not in a mood to listen to Commodore Bainimarama’s plea for pragmatism as the army chief tries to search for solutions to move the country forward from the debris of a fourth coup.

Mr Qarase is, however, following in Mr Chaudhry’s footsteps. In his article in the Parliamentarian, Mr Chaudhry recalled Justice Anthony Gates now famous 15 November 2000 judgment that the interim administration then led by Mr Qarase had “no constitutional foundation of legality”. Mr Chaudhry told his fellow Commonwealth parliamentarians that faced with the intransigence of those who grabbed power, his deposed Peoples Coalition government had no other recourse but to seek redress through the courts. Meanwhile, the army, the President and the interim administration gave an assurance to the Commonwealth and the rest of the international community that they would abide by the Appeals Court ruling. On 1 March 2001, the Fiji Court of Appeal, Mr Chaudhry noted, upheld the Gates ruling and the validity of the constitution. It went further and ruled that the actions of the army commander in abrogating the constitution and assuming executive authority could not be justified under the doctrine of necessity.

The ruling paved the way for Parliament to be reconvened and the elected government restored to office. This, however, was hardly what the post-coup authorities had in mind. “What took place in Fiji next was a blatant and wilful distortion and manipulation of the constitutional and legal system to allow the army-backed regime to continue in office,” Mr Chaudhry claimed. On 14 March 2001, President Ratu Josefa dismissed Mr Chaudhry and proceeded to appoint Ratu Tevita Momedonu, a member of Chaudhry’s ousted government, as Prime Minister for 24 hours to legalize his next move. He then dissolved Parliament on Ratu Tevita’s advice and reappointed Mr Qarase as caretaker Prime Minister. In his analysis of the events, Mr Chaudhry described Ratu Tevita as “a puppet Prime Minister” and the whole appointment for a day was farcical and it made a mockery of the constitution.

Mr Chaudhry also went on to berate the President himself: “The constitution requires the President to be appointed by the Great Council of Chiefs in consultation with the Prime Minister. In the next questionable move Ratu Josefa Iloilo, placed in office after the coup and who the Appeals Court declared to be in an acting capacity only, convened a meeting of the Great Council of Chiefs, and got himself appointed President.” What all these events clearly meant, he claimed, was that Fiji’s post-coup authorities had no respect for the rule of law.

Mr Chaudhry once again also cast doubt on the subsequent 2001 general elections, claiming that the elections were not free and fair. He also attacked the suspended Chief Justice Daniel Fatiaki, who had replaces Sir Timoci. “The Chief Justice has, in my view, continued to frustrate legal challenges to some of the developments since the terrorist attack of 19 May 2000 by interfering with the judicial process, and indulging in judge-shopping. Such antics have brought disrepute to the judiciary, and puts its integrity and credibility on the line. Much of what has transpired in the last couple of years has, I contend, been done with the connivance or complicity of some members of the judiciary,” Mr Chaudhry claimed.

He also condemned the Commonwealth for hastily and injudiciously lifting sanctions etc on Fiji. While condemning the forces of destabilization, he said the Commonwealth was effectively giving tacit encouragement to these elements.

Reflecting on the tragic and bloody 2 November 2000 mutiny at the Queen Elizabeth Barracks when the rebels made a last ditch attempt to seize the army headquarters and remove Commodore Bainimarama, Mr Chaudhry told his fellow Commonwealth parliamentarians: “It is important to note hear that the army’s decisive move to restore law and order was driven more by its determination to purge its own ranks of rebellious elements and their supporters who posed a threat to the commander’s life, than from a desire to restore democracy. Furthermore, having achieved the objectives of the coup and established a government of its choice, it was ready to provide the stability that was a prerequisite for that administration to function effectively.”

Thereafter, it quickly became clear, Mr Chaudhry continued, that the army-backed interim administration had no intention of relinquishing power and restoring the elected government to office. “Today there is convincing evidence that senior army officers and several senior members of the post-coup administration had been party to the conspiracy to overthrow the People’s Coalition government,” Mr Chaudhry claimed. He contended that the security forces posed the biggest threat to stability to any democratically elected government in Fiji.

And yet Mr Chaudhry had no hesitation to become Interim Finance Minister in a military-led government? Why? A coup is a coup? Who are the senior army officers who pose a threat to Fiji?

Tuesday, June 12, 2007

What did Justice Gordon Ward tell LAWASIA

The Interim Attorney General Aiyaz Sayed-Khaiyum has called on the President of the Fiji Court of Appeal, Justice Gordon Ward, to resign. In a statement Mr Khaiyum claimed that Justice Ward supported Suva lawyer Graham Leung of Howards, and wrote a letter to LAWASIA questioning as to why its president Mah Weng Kwai, had taken the post of commissioner on at the Fiji Independent Commission Against Corruption.

According to Mr Khaiyum, on May 30, Justice Ward wrote that the events of December 5 was a ‘coup”, that our “President has no power to make laws” and consequently made “judgments about FICAC”. Mr Khaiyum said Justice Ward wrote to LAWASIA on the letterhead of the Court of Appeal questioning as to why Mah had taken the position. Mr Khaiyum did not elaborate on the contents of the letter.

What did Justice Ward write to LAWASIA? A signed copy of Justice Ward’s letter obtained by me confirms Mr Khaiyum’s contention. The letter, written on the Fiji Court of Appeal letterhead, was written on 30 May 2007, and addressed to the Secretary General, LAWASIA, GPO Box 980, Brisbane, Queensland, Australia. The letter was sent by facsimile (No: 0061 7 3222 5850) and addressed to one Ms Neville. Justice Ward wrote in his capacity as President of the Fiji Court of Appeal, and signed it. He also sent a copy to Mr Mah.

He began by claiming that, “The appointment of the President of Lawasia as Commissioner of the Fiji Independent Commission Corruption established by the interim government leaves me with no alternative but to resign my membership of Lawasia”. Justice Ward said he first became a member of LAWASIA some years ago. He supported its consistent promotion of human rights and the rule of law. Justice Ward said he admired the principled stand it was willing to take when the judiciary or legal profession were under attack anywhere in the region. Following the coup in Fiji last December, the same stance was adopted.

Justice Ward asserted: “We were encouraged here to read that Lawasia had strongly condemned the actions of the military in seizing executive power, effectively at gunpoint. It correctly described it as a gross assault on the rule of law, unacceptable in a democratic country. That view was also taken by similar bodies in Fiji and around the world. Lawasia was later reported as having similarly condemned the forced removal of the Chief Justice by military officers. We were further heartened when Lawasia announced it was sending a fact finding mission to Fiji to be led by Mah Weng Kwai.”

But Justice Gordon expresses disappointment with LAWASIA for publishing a large photograph of Commodore Frank Bainimarama and also for effusively praising the current Interim Attorney-General Khaiyum. He informed LAWASIA: “Unfortunately, the initial report after the visit, published in the April edition of Lawasia Update, was insensitive enough to start with a large photograph of the members of the mission with Bainimarama, the man who had headed the removal of the elected Government by the military and who, once he was 'appointed' interim prime minister, retained command of the military, thus ensuring an effective military government, and directed the forced removal of the Chief Justice The report then gives effusive thanks to the interim attorney general for his generosity with his time and for the briefing by him on the controversial commission against corruption which the report describes as a "key focus" of the interim government and a "vital process in restoring good governance in Fiji.”.

He informed LAWASIA that he knew from reported comments by Mr Mah himself that his (Mr Mah’s) appointment was first suggested by Mr Khaiyum during that visit when Mr Mah was heading an ostensibly independent fact finding mission. But according to Justice Ward, “Such an approach was inappropriate and suggests that Mr Mah had already taken a view that there was legitimacy in the interim military government despite the repeated claim in the subsequent final report that it deliberately avoided making any such decision”.

Justice Ward also pointed out that Mr Mah is no doubt aware that, under the Fiji Constitution, lawmaking power is vested in Parliament. The President has no power to make laws but Mr Mah’s appointment had been made under such a claimed power.

Justice Ward than proceeds to comment on Captain Esala Teleni, suspended Chief Justice Daniel Fatiaki, and the removal of high ranking civil servants etc: “No doubt he (Mr Mah) was advised that his deputy commissioner in the independent commission is the second in command of the military. Far from “restoring” good governance in Fiji, the interim government has repeatedly used vague and unspecified allegations of corruption as its reason to arbitrarily remove high-ranking civil servants and prominent leaders – frequently in disregard of lawful procedures. The removal of the Chief Justice by the military officers and the absence of any specific charges more than four months later is one of many examples.”

He said he had no doubt that Mr Mah was a highly regarded lawyer in the Asia Pacific region. Justice Ward added that he was sure Mr Mah had the necessary qualifications for the position he had accepted in Fiji. He intended no criticism of Mr Mah personally but the appointment, he claimed, had been well publicized in the newspapers and on radio and television. Justice Ward added: “Whilst reference has been made to his reputation and undoubted experiences, the principal emphasis has been his presidency of LawAsia as suggesting an indication of acceptance in the international community of the validity of the military’s claimed reason for removing Fiji’s elected government.”

Justice Ward than announced that he was resigning from LAWASIA: “This has made it impossible to regard his appointment as a personal matter. I consider his acceptance of it is totally inconsistent with his role as the public face of LawAsia. I regret to say it as having compromised LawAsia’s hitherto deserved reputation to such an extent that I fear my continued membership may be seen as an acquiescence in such a compromise.”

He said he was attending the Hong Kong conference in his capacity as Chief Justice of Tuvalu. “I understand that attendance at the Chief Justice’' conference does not depend on membership of the association. However, I intend still to attend some parts of the principal conference despite my resignation. I shall take no part in Lawasia after that”.

Justice Gordon Ward’s letter once again raises the issue of revolution and the position of the judiciary. While Commodore Bainimarama invoked the Doctrine of Necessity, the judges could defend themselves on the necessity ground of jurisdiction. There are occasions in extreme circumstances such as revolution where it is necessary in the interest of public order for a court, sitting to determine the status of a revolutionary government to override claims that it lacks jurisdiction. This was the approach taken by MacDonald JA and Fieldhouse AJA in the Southern Rhodesian cases of Madzimbamuto in the Appellate Division and Beadle CJ in Ndhlovu. MacDonald said: “The municipal courts, unlike a foreign government, cannot wait upon events. The function of courts of law within a territory is to maintain law and order and to avoid by every possible means anarchy, chaos, or uncertainty and this is an urgent task.”

Fieldsend AJA found that the court could not sit to determine whether the constitution by which it was created had disappeared, and that there could be no “halfway house” between deriving jurisdiction from the 1961 and 1965 Rhodesian Constitutions. Nevertheless, he came to the conclusion that on the grounds of necessity, the court should give effect to certain of the acts of the Ian Smith Government which had declared Unilateral Declaration of Independence from Great Britain. Beadle CJ in Ndhlovu thought that something other than legality required the courts to continue to sit, and that was on “protecting the fabric of society”.

He did not think that to carry on was to be “disloyal” to the 1961 Constitution and thought rather that the judges had been “overtaken by events”. He said the judges should ask the following question: “Is it better to remain and carry on with the peaceful task of protecting the fabric of society and maintaining law and order, or is it better to adhere to the old 1961 Constitution and go along with it.” He was referring to the necessity ground of jurisdiction. In revolutionary situations the courts must carry on, to “protect the fabric of society”, instead of quietly attempting to bring down the revolutionary government.

It seems that Justice Ward has jumped the legal gun even before the test cases have come before the High Court and the Fiji Court of Appeal. The words of the great English judge Lord Denning seems to have deserted him: “For all judges on extra judicial issues, silence is the best option.” It would be interesting to see if Justice Gordon Ward resigns as president of the Fiji Court of Appeal. It will be rank hypocrisy if he did not. He is after all presiding over the Fiji Court of Appeal and not over LAWASIA in Commodore Frank Bainimarama’s post-coup Fiji.