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Fiji Time: 2:38 AM on Thursday 21 August

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President has the power, says lawyer

Thursday, March 20, 2008

PRESIDENT Ratu Josefa Iloilo was entitled to act with foresight and did not have to wait for an emergency to arise to take action, the High Court in Suva heard yesterday.

Queen's Counsel (QC) Gerard McCoy, who is representing Commodore Voreqe Bainimarama, the Republic of the Fiji Military Forces and Attorney-General in the legal challenge brought by Laisenia Qarase and others, said Ratu Josefa did not wait for the nation's throat to be cut and did what he had to do.

He told judges Anthony Gates, Devandra Pathik and John Byrne that Ratu Josefa did not have the blessing of hindsight, but had the obligation of a foresight to use his prerogative powers.

Mr McCoy referred the court to numerous decisions by other judges in England, New Zealand and India that ruled against court interferences in prerogative decisions.

He said other judges had walked the similar path the court was taking and concluded against interference on the decision to execute prerogative powers.

Qarase's QC, Nye Perram, had argued Ratu Josefa did not have any powers to appoint Commodore Bainimarama prime minister as his "emergency powers were only within the context of the 1997 Constitution".

Mr Perram said the court needed to determine what the Constitution said about the President's "executive powers" and whether it was lawfully applied following the events of December 5, 2006.

He said the Constitution upheld values of the rule of law and it was the role of the judiciary to determine what the powers of other branches of Government were.

Mr McCoy said it was not Ratu Josefa's right to use his executive privilege but his duty.

He said all the court needed to determine was whether such prerogative powers exist in Fiji.

He said British colonies had inherited the royal prerogative since the 1800s and referred to the court to judgments by the House of Lords.

He said in one particular case the court ruled that unless such powers were taken away by Parliament, the Crown had the power to appoint.

"There is no doubt in my submission the prerogative powers has been planted into the soil of Fiji."

"A natural inheritance of the monarchy and other places where monarchy was received," he said.

He said the essence of prerogative powers was to act for the good of the public when there is no law.

Mr McCoy said these were steps to ensure tranquillity of a nation from destruction.

He said disorder to life needed to be claimed by prerogative authority to ensure peace.

The court adjourned yesterday to allow Mr Perram time today to present his closing submissions.

Mr McCoy has asked to be excused when Mr Perram submits his closing arguments, because he had to arrange for travel back overseas.

The case resumes this morning.


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