Asia Pacific Network: 24 January 2001
JUSTICE: FIJI'S APPEAL COURT TO DECIDE ON WHO GOVERNS
Fiji's Court of Appeal will have to rule on who is the Pacific nation's effective government now and not on the issues of the 2000 coup, says leading New Zealand barrister Anthony Molloy, QC, involved in the case. Pro-democracy opponents will have to show there is a "rival competing government" ruling or ready to rule.
By MICHAEL J. FIELD (Agence France-Presse)
FIJI'S COURT of Appeal will have to rule in February on who is the Pacific nation's effective government now and not on the issues of last year's coup, a leading barrister involved in the case said Thursday.
Opponents in the case will have to show there is a
"rival competing government" ruling or ready to rule, Queen's Counsel Anthony Molloy said in an interview with AFP.
Legally "it is a well worn path"
with plenty of case law, including Pakistan constitutional cases, Rhodesia's
unilateral declaration of independence and the establishment of homelands under the South African apartheid government, he said.
A full five-strong bench of the Appeal Court, headed by New Zealander Sir
Maurice Casey, will next month hear the case in what is being billed as
critical to the future of Fiji.
Local media reports say there are fears for the security situation if the court judgment is interpreted
as ordering a return to the overthrown government of Prime Minister Mahendra
Chaudhry.
In a letter to the New Zealand Herald, Molloy, who acted in court earlier
this month for the interim Fiji Government, took issue with reports
that government had faced legal setbacks in recent rulings.
Fiji is currently facing a constitutional hiatus in the wake of the May
19 last year coup by failed businessman George Speight who seized Chaudhry
and his government, holding them hostage for 56 days.
On May 29, the military
declared martial law, abrogated the constitution, forced President Kamisese
Mara to step aside and ruled for a time before installing the current
interim government of Prime Minister Prime Minister Laisenia Qarase.
On November 15, High Court Justice Anthony Gates ruled that the constitution was still in
place and Mara was still president. Gates reached his judgment without
hearing evidence from the interim government, which has appealed.
On January 17, the Appeal Court, headed by New Zealander Sir Maurice Casey,
heard interim matters argued by Molloy and ruled on one issue that Gates'
judgement "does not have any legally coercive effect."
"A finding that Justice Gates' decision was not legally coercive, and
that there was nothing to be stayed, therefore was not a 'setback' for the
interim government's case at all," Molloy said.
On a second issue Casey found in favour of the interim government which
argued it should be allowed to present evidence it was unable to present
before Gates.
Casey's ruling said the evidence should be admitted: "A major factor in
assessing the legality of the present Administration is said to be the
extent to which it is effectively government the country and receiving
public support.
"This court cannot close its eyes to any relevant
developments over the months following the hearing."
Molloy said the interim government had not suffered a
setback.
"Fiji has problems which could cause Solomon loss of sleep," Molloy
wrote.
"The last thing the country needs is for the situation to be inflamed by
mis-reporting."
In an interview, Molloy said that Gates had imposed an impossible deadline
on the state to provide evidence that it was ruling the country and that
this evidence was now allowed to be presented in the Appeal Court.
The principle to be considered was that "the law doesn't make government,
government makes law" and in effect the court had to deal with the
realpolitik of a situation.
In his argument before Casey, 13 affidavits were provided from the state.
"They pointed out that the country was functioning perfectly normally,"
Molloy said. "The police are effective, the taxes are being paid, the
government commands the army and the country is running smoothly."
In the case of Rhodesia's (now Zimbabwe) reached the
House of Lords where it was found that while the government of Ian Smith was
in place in the country, there was a rival, functioning alternative, the British Government.
In Fiji, the state's opponents will now have to show to the court that
there is a practical, functioning alternative government in place.
A British QC, Nicholas Blake, will argue the case next month before a
bench that will be made up of Australians, New Zealanders and a Papua New
Guinean.
Letter published in the New Zealand Herald, 25 January 2001
The item headed "Setback for Fiji's interim leaders" on B3 of the Herald
for January 18 presumably was derived from a foreign news service in respect
of previous Monday's case in the Court of Appeal in Suva.
I argued the
application or the interim government of Fiji, and I feel bound to point out
that the item was most misleading. There were two matters before the Court
of Appeal.
The first was the application to stay the November 15, 2000, judgment of
Justice Gates in the High Court of Fiji. This application had been filed
before my involvement began. It was filed by local counsel as a precaution.
In presenting argument, I advised that the Government now accepted that
there was nothing to stay. The judgment of Justice Gates was just an opinion
on the facts as they stood at the very outset of the administration of the
interim Government.
Sir Maurice Casey agreed. He held that Justice Gates'
opinion of what should happen "does not have any legally coercive effect."
A finding that Justice Gates' decision was not legally coercive, and that
there was nothing to be stayed, therefore was not a "setback" for the
interim Government's case at all.
The second, and critical, matter before Sir Maurice was the interim
Government's application for leave to file evidence in support of its appeal
against Justice Gates' decision. The application was opposed expertly.
Sir Maurice nonetheless held that, "I have no doubt that evidence as to
matters which have occurred after the date of hearing (by Justice Gates) on
August 23, 2000 should be admitted in the appeal.
"A major factor in
assessing the legality of the present Administration is said to be the
extent to which it is effectively government of the country and receiving
public support. This court cannot close its eyes to any relevant
developments over the months following the hearing."
The interim Government's application therefore succeeded. The appeal will
be argued in February against a factual background not considered by the
High Court in its judgment of November 15, 2000.
How, in the face of what happened, the report you carried could possibly
have described the outcome of this hearing as a "setback" for the successful
interim Government is a mystery. The headline and the tenor of the report
are seriously misleading.
Fiji has problems which could cause Solomon loss of sleep. The last thing
the country needs is for the situation to be inflamed by misreporting.
Anthony Molloy, QC
Photo: Pacific Journalism Online (USP)
mjf
Auckland