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Why aren’t you exercising your powers Mr President!!!

December 17, 2010

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.
Coup point five

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)

Rusiate Varani~General Secreatary of the Solivakasama Worldwide Movement 

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