The Queen's Counsel representing ousted Prime Minister Laisenia Qarase said establishing the reason to justify Commodore Voreqe Bainimarama's actions to take control from the President Ratu Josefa Iloilo, was difficult.
Speaking in the High Court Queen's Counsel Nye Perram said if Commodore Bainimarama was permitted to invoke such power, it necessarily required a consideration of the circumstances he was confronted with at the time.
Mr. Perram said the obvious person who could actually inform the court in a clear sense of what were the necessities which required the takeover of the Office of the President was the commander himself.
He said the problem was Commodore Bainimarama had decided, for reasons known only to him, that he was not prepared to give evidence in the High Court proceedings which was under way.
Mr. Perram said it made things difficult that Commodore Bainimarama was not prepared to expose himself to the risk of cross-examination.
He indicated the list of cross-examination would not be minor, because there were contemporaneous documents which were passed between the Government and the military before December 4.
Mr. Perram said if Commodore Bainimarama was to take the short walk into the witness box, it would be a relatively straight-forward cross-examination.
He said they did not anticipate Commodore Bainimarama to be called in court but made the open invitation to his lawyers.
Mr. Perram said at the moment, the judges hearing the case, Acting Chief Justice Anthony Gates, Justice John Byrne and Justice Devendra Pathik, were confronted with the case that consisted of the military saying it was necessary for the commander to seize power but even though Commodore Bainimarama was not produced to explain why it was so.
Outside court, Mr. Qarase and Soqosoqo Duavata ni Lewenivanua party members lawyer Tevita Fa said Commodore Bainimarama could not be called to the witness box because he did not sign any affidavits.
"Commodore Bainimarama has not sworn any affidavits so he cannot be cross examined even though he is a crucial element as the case is against him.
"Because of that no one can touch him and it is a technical matter," said Mr. Fa.
He said the military was relying on the Doctrine of Necessity to justify their actions but Commodore Bainimarama should justify it in court.
Outside court interim Attorney-General Aiyaz Saiyed-Khaiyum said both the interim Government and Mr. Qarase's lawyers noted the calling of witnesses could take weeks if not months and could turn into a mud-slinging match.
Meanwhile, the military is not taking any chances and have beefed-up security around their boss, especially with the bombing rumours they have been receiving, says military spokesman Lieutenant Colonel Mosese Tikoitoga.
Lt-Col Tikoitoga said security measures around Commodore Voreqe Bainimarama was tightened. Since he got into the country from America on Wednesday morning.
He said they were aware of rumours circulating in the country regarding a bombing planned for October 10.
"We are aware of it," Lt-Col Tikoitoga said.
"Fiji is thrived on rumours."
He said they could understand where those rumours were from.
"It could have originated from around a grog bowl," he said.