THE President Ratu Josefa Iloilo had reserved sovereign power to do what he thought was necessary in a crisis and his actions were "non-justiciable", Queen's Counsel Guy Reynolds said in court yesterday.
In his opening submission in the trial of ousted Prime Minister Laisenia Qarase and members of the Soqosoqo Duavata ni Lewenivanua party, who have taken court action questioning the legality of the events that followed the military takeover on December 5, last year in the High Court yesterday, Mr. Reynolds said the power allowed the President to act when he saw it necessary to do so.
Citing an example, he said there was a similar situation in Australia in 1975 when Governor-General Kerr sacked Gough Whitlam. He said the sacking was never challenged in a court of law. Mr. Reynolds said what happened in December happened with the blessings of Ratu Josefa after he exercised his executive power.
He said what needed to be determined was an exercise in ultimate executive authority.
In his opening remarks, QC Nye Perram for Mr. Qarase, said under the Constitution, the commander of the RFMF, Commodore Voreqe Bainimarama, did not have the power to take executive authority of the country.
He said Mr. Qarase still maintained the confidence of the House of Representatives and according to the Constitution, Ratu Josefa as President did not have the power to dismiss Mr. Qarase.
Mr. Perram said there maybe, depending on evidence, some areas of executive privilege for Ratu Josefa but queried if there was such power in this instance.
He said after Mr. Qarase's appointment to Prime Minister he formed a coalition government in May and a series of disagreements with Commodore Bainimarama started.
Mr. Perram said before December 5, the military made a series of demands and Mr. Qarase was willing to give way to some.
One of the demands included the withdrawal of two bills.
In November, Commodore Bainimarama made it clear to Mr. Qarase and Ratu Josefa that if the PM did not accept all the demands, he would take control of the government.
Mr. Perram said this led to a difficult situation between the PM and the President's Office.
On Monday December 4, Commodore Bainimarama suggested to Ratu Josefa for Mr. Qarase to resign. That afternoon Mr. Qarase was supposed to meet Ratu Josefa at Government House but because he was asked by soldiers at the gate to get out of the car and walk to the home he decided not to as it was dark and it was not the way to treat the Prime Minister.
Under those circumstances, he left Government House. Mr. Perram said on December 5, Qarase's official car was taken by soldiers and when he called Government House the secretary, Rupeni Nacewa, told him that Ratu Josefa wanted to avoid a coup and was going to ask him to resign. Mr. Perram said Mr. Qarase indicated to Mr. Nacewa he would not resign
The court heard that Ratu Josefa was vexed and sought advice from Mr. Nacewa before telling Commodore Bainimarama that Mr. Qarase had refused to resign. On December 5, Commodore Bainimarama told Ratu Josefa at Government House he would take executive control.
Mr. Perram said Ratu Josefa then said "vinaka vakalevu".
He said the move to dismiss Mr. Qarase was null and void because there was no such power as exercised by Commodore Bainimarama. Mr. Perram said Ratu Josefa did not dismiss Mr. Qarase, a soldier did.
He said the Constitution did not permit a soldier to exercise the President's authority and no matter what Commodore Bainimarama had done, Ratu Josefa remained in office.
The trial continues today.