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Fiji Time: 1:28 AM on Wednesday 17 September

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It's legal - judges favour decisions of of President

By VERENAISI RAICOLA
Friday, October 10, 2008

THE Fiji High Court yesterday upheld decisions made by the President after the December coup, including the granting of immunity to the interim Prime Minister and his soldiers involved in the overthrow of the Qarase government.

The controversial ruling dismissed deposed prime minister Laisenia Qarase's challenge of the President's powers and, in fact, cemented the President's authority and decisions in times of a crisis. The ruling by judges Anthony Gates, John Byrne and Devedra Pathik was delivered by Acting CJ Gates to a packed courtroom.

Justice Gates said the decision by the President to ratify the dismissal of Mr Qarase and appoint Dr Jona Senilagakali as caretaker PM to advise the dissolution of Parliament were valid and lawful acts.

He said that was in exercise of the prerogative powers of the head of State in a crisis.

Justice Gates said the decision of Ratu Josefa to rule directly pending the holding of fresh, fair and accurate elections was upheld as valid and lawful.

He said the President's decision to make and promulgate legislation in the interest of peace, order and good government in the intervening period prior to a new Parliament is upheld as valid and lawful.

Justice Gates said the granting of immunity by Promulgation was within the powers of the President in the emergency.

Mr Qarase wanted the court to decide the lawfulness or otherwise of certain acts carried out by the President following the military intervention in December 2006.

The question was whether those powers enabled Ratu Josefa to ratify the acts of the military in the takeover and allow him to discharge duty without the specific authority of the Constitution.

Justice Gates said the pivotal question was how far the courts could subject the President's conduct to judicial review.

Interim Prime Minister Voreqe Bainimarama declined to comment while military chief of staff Colonel Mohammed Aziz referred all queries to Major Neumi Leweni.

Major Leweni said they would make a joint statement after reading the full judgment.

An emotional Mr Qarase said after the ruling he was surprised and very disappointment.

"I think there has been a miscarriage of justice here," he said.

"The judgment virtually gives you a passport to future coups and all you need to do is run to the President and he takes it up."

Mr Qarase said he would consult his lawyer first before any further decision is made.

Fiji Law Society president Dorsami Naidu said the ruling had far reaching consequences.

Tourism Fiji chair Patrick Wong said they would support the government of the day as they were apolitical.

Fiji Islands Hotel and Tourism Association president Dixon Seeto said they would study the judgment before deciding if a comment was warranted.

Chamber of Commerce president Swani Maharaj said now it's important for everyone to cooperate with the interim Government.

He called on the US, Australia and NZ to lift travel bans.

Constitutional lawyer Jon Apted who was still scrutinising the judgement said it appeared the court has held that the President has very wide prerogative powers.

"These powers not only authorised the interim Government appointments in January 2007 but also allows the President to continue to govern the country and make laws for as long as he thinks the circumstance requires," Mr Apted said.

Mr Qarase wanted the court to decide the lawfulness or otherwise of certain acts carried out by the President following the military intervention in December 2006.

The question was whether those powers enabled Ratu Josefa to ratify the acts of the military in the takeover and allow him to discharge duty without the specific authority of the Constitution.

Justice Gates said the pivotal question was how far the courts could subject the President's conduct to judicial review.

Interim Prime Minister Voreqe Bainimarama declined to comment while military chief of staff Colonel Mohammed Aziz referred all queries to Major Neumi Leweni.

Major Leweni said they would make a joint statement after reading the full judgment.

An emotional Mr Qarase said after the ruling he was surprised and very disappointment.

"I think there has been a miscarriage of justice here," he said.

"The judgment virtually gives you a passport to future coups and all you need to do is run to the President and he takes it up."

Mr Qarase said he would consult his lawyer first before any further decision is made.

Fiji Law Society president Dorsami Naidu said the ruling had far reaching consequences.

Tourism Fiji chair Patrick Wong said they would support the government of the day as they were apolitical.

Fiji Islands Hotel and Tourism Association president Dixon Seeto said they would study the judgment before deciding if a comment was warranted.

Chamber of Commerce president Swani Maharaj said now it's important for everyone to cooperate with the interim Government.

He called on the US, Australia and NZ to lift travel bans.

Constitutional lawyer Jon Apted who was still scrutinising the judgement said it appeared the court has held that the President has very wide prerogative powers.

"These powers not only authorised the interim Government appointments in January 2007 but also allows the President to continue to govern the country and make laws for as long as he thinks the circumstance requires," Mr Apted said.

He added that the judgement left it to the President's discretion as to when and how elections would be held.

View the full text of the High Court judgement in the case between Qarase and Bainimarama & others.


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