24 June 2000
Letter from Citizens' Constitutional Forum
Colonel Filipo Tarakinikini
Fiji Military Forces
Queen Elizabeth Barracks
I have just watched you on the "Close Up" programme on Sunday 4th June 4. Whilst I could be persuaded that Fiji Military Forces judgement about the necessity to intervene in the hostage situation was probably timely, I must say that I disagree with the FMF has gone about it and especially the making of legally and morally wrong political decisions which are not within the province of the FMF to have made. These wrong decisions have put the F.M.F and the people of Fiji in a more grave situation that we would be in had your Commander and you his colleagues taken proper legal advice from a Constitutional expert before imposing Martial Law.
The wrong decision taken was to abrogate the 1997 Constitution and the announcement that another new Constitution will be drawn up by an interim government of civilians "who are best qualified to deal with that problem" (to quote you). This was not warranted by the situation we are facing today, and legally wrong. It clashes directly with the correct position taken by all foreign governments, that the solution to the hostage crisis must be found within the 1997 Constitution. Consequently, these countries are going to impose damaging sanctions against Fiji irrespective of whether the hostages are freed unharmed and freed or with some deaths or injury. Whilst one could understand your desire for the President to step aside, this did not require the abrogation of the 1997 Constitution. That is seen by the international community as validating George Speights group against an elected government and setting a dangerous precedent of conceding to a terrorist group in the destruction of a democratically elected government
Australia, New Zealand, and all of Fijis friends in the Commonwealth are not going to tolerate this (as the Australian Minister, Mr Alexander Downer has said quite clearly in the Australian Parliament on Friday), and they will punish us with sanctions and expulsion from the Commonwealth even including sanctions by resolution of the United Nations. We are the first country in the modern world to allow the holding hostage of an elected government by a terrorist group and the totally capitulation of those still holding state executive authorities to their demand for a new legal order that enables them to assume political power and amnesty for all their criminal and treacherous acts. I have written to Commodore Bainimarama about this, but it seems the F.M.F. is still oblivious to the serious international import of these events in Fiji, and the dractic reaction of the international community to what you have allowed that will hit us hard in the next few months, and gradually over the years.
The F.M.F. has obviously not taken correct legal advice on the proper role of a military force intervening in a state of emergency to preserve a Constitutional legal order or to protect the lives and safety of citizens. Here I quote from the advice on this matter tendered to his Excellency the President, Ratu Sir Kamisese Mara on 22nd May 2000 by Professor of Constitutional Law at Hong Kong University. Professor Ghai in an internationally respected Constitutional lawyer, who has a very good understanding of the situation in Fiji. He is a founder Member of the Citizens Constitutional Forum. This is what he said:
- The principal purposes for which Constitutional law proves for the possibility of a state of emergency is in order to preserve the constitutional order or to protect the lives and safety of citizens in particularly grave circumstances.
- Such a power should therefore be used (a) where there is genuinely a state of emergency and (b) only to the extend that is necessary.
- As an example, the Court of Appeal of the Island of Grenada was faced with a situation in 1989s when the governor-general made decrees on the basis of the doctrine of necessity, in a situation involving a coup. The Court upheld decrees of the Governor-General on the doctrine of necessity, but in doing so laid down a number of conditions for the validity of acts under necessity, drawing upon earlier cases. These are: (a) an imperative necessity must arise because of the existence of exceptional circumstances not provided for in the Constitution, for immediate action to be taken to protect or preserve some vital function to the state; (b) there must be no other course of action reasonably available; (c) any such action must be reasonably necessary in the interest of peace, order and good government; but it must not do more than is necessary or legislate beyond that; (d) it must not impair the just rights of citizens under Constitution; and (e) it must not be one the sole effect and intention of which is to consolidate or strengthen the revolution as such (Mitchell and others v. DPP [1986} LRC (Const) at 88-9.
- This and similar cases indicate that powers taken during such an emergency extent only to the minimum interference with the normal processes of government.
- These would include the preservation of order and should be directed towards the restoration at the earliest possible opportunity of the legitimate constitutional procedure.
- The powers of the President would not therefore extend, nor should the President be subject to any pressure to extent them, to the dissolution of Parliament or the dismissal of the Government.
You will note in the above stated conditions for the validity of acts of a military or executive authority it must be
(1) "of imperative necessity"
(2) "There must be no other course of action reasonably available"
(3) the "action must be reasonably necessary in the interest of order and good government"
(4) "It must not impair the jus right of its citizens"
(5) it must consolidate and strengthen the legal order.
The decision to ask the President to retire, the abrogation of the Constitution, the decision to form a Military Council government, and the decision to form an interim civilian government after the release of hostages cannot be justified as meeting any of the test of legal validity as outlined above. In fact all the actions of the F.M.F. amount to giving to the demand to the demands of the Speight group that is holding elected Members of Parliament hostage. This is also the reason why there is widespread suspicion that the F.M.F has its own agenda to create a situation where military rule will be prolonged or will be compelled to come in later on if the appointed post coup Civilian government is unable to cope with the problems created by the international sanctions.
The F.M.F. and you yourself do not seem to realise that your notion of trying to resolve the hostage situation in culturally Fijian way (i.e., capitulation to all coup makers demand) is not only internationally unacceptable from the standing of constitutional and democratic principles, but also destructive of the integrity and moral basis of indigenous Fijian culture. It is a contribution to the destruction of the moral authority of the Bose Levu Vakaturaga and the roles of the Chiefs in the Constitutional set up we have. The people of Fiji will no longer be able to look up to the Council of Chiefs as a Council of Moderation and an agency of national unity. In giving in to George Speights demands, you have reduced the Council of Chiefs into a body of warring self-interested individuals who can no longer claim to have the moral authority to lead us indigenous Fijians; and the F.M.F. Commanders are not going to be a good substitute for the Chiefs either. Obviously the F.M.F. plan for a civilian interim government after the release of the hostages will be one that is led and chosen by Speights supporters. And they will draw up the new Constitution.
That is a completely na´ve plan. Not only is it unacceptable to the majority of people in Fiji who oppose his "coup" and support Constitutional democracy, it is also unacceptable to the international community. All these forces inside and outside Fiji will actively not co-operate with the F.M.Fs plan. How many times does this have to be spelt out to you military guys for you to understand? Please read the newspapers and also all the statements of foreign governments that I have sent to Commodore Bainimarama in the last week. Fiji and the F.M.F. will not be able to survive the effects of international sanctions as a consequence of your foolish decisions to placate and negotiate with George Speight and his supporters. These sanctions will be introduced (indeed have already been implemented by trade unions overseas) if the F.M.F. continues along the path it has chosen to take. We are also going to suffer so unnecessarily.
The only thing you the F.M.F. can do now is to save this country from disaster is for the F.M.F. to introduce a decree soon after the release of the hostages reviving the 1997 Constitution, and arresting all of Speights supporters who were involved in the Coup and those who agreed to be members of his Cabinet. The alternative to not doing this are horrendous to this country. You have admitted on T.V. that George Speights notion of "Fijian Supremacy" is impractical in terms of policies and from any other standpoint. As you have said, there is no alternative to hard work. Fijian Supremacists are basically a "Cargo Cult" movement and the F.M.F. so far have proven that they prefer to yield to cargo cultism than to follow principled abd practical discussions. You are taking this nation to disaster when you are gping to wake up and be intelligent? I am willing to discuss this matter with you and others in the F.M.F. But I suppose you guys are too arrogant to listen to people who are not from the military.
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