Bainimarama created Fiji power vacuum: judges

Geraldine Coutts

Last Updated: Tue, 14 Apr 2009 20:24:00 +1000

The three Fiji Appeal Court judges who ruled that the 2006 coup is illegal are angry at comments by the President and Commodore Bainimarama that the decision left the country with a leadership vacuum.

Justices Ian Lloyd, Randall Powell and Frances Douglas all claim the decision provided for a caretaker government to be installed.

Justice Lloyd has told Radio Australia's Pacific Beat the events that followed the dumping of the constitution are of the military's own making.

"This is misinformation, quite malicious misinformation, that Bainimarama and the President have spread to enable them to abrogate the constitution and run the country as a military regime, a dictatorship that they want," said Justice Lloyd.

Another of the judges involved, Justice Francis Douglas, denied that their decision had created a power vacuum.

"It's no more a vacuum than the hiatus that exists between one government going out of power prior to elections and another one coming in," he said.

"You've still got the functioning executive, you've still got the courts, all of whom are bound to uphold the constitution. [The sacking of the courts] is not us creating a vacuum - it's Bainimarama creating a vacuum."

Justice Randall Powell said they had deliberately sought to avoid a power vacuum.

"We had the option in the judgement of making orders which would have seen Mr Qarase restored as prime minister, but we actually gave a third way - that is the appointment of an independent person, to advise the president to call elections," said Justice Powell.

"And we also stressed...that the judgement did not in any way invalidate legislation or what had occurred to that point. So again, it was just used as an excuse by the military to do what they've done."

Judging the 'puppet master'

Australian judges Ian Lloyd QC, Randall Powell SC and Francis Douglas QC were appointed to Fiji's Court of Appeal, where they heard an appeal against a lower court ruling which said Commodore Bainimarama's 2006 coup was legal.

Last week, the court ruled that coup was illegal, and declared that the president should appoint a caretaker Prime Minister with a view to democratic elections.

But Fiji's interim leaders moved quickly to counteract the ruling.

President Ratu Josefa Iloilo instead repealed the constitution and sacked the judiciary, before reinstating Commodore Bainimarama's interim government.

One of the three judges, Ian Lloyd QC, has told Radio Australia's Pacific Beat program they did not expect the ruling to have that effect.

"We obviously anticipated that there might be problems - I don't think any of us anticipated that Bainimarama would take the judgement well, and I don't think the ramifications were out of our minds" he said.

"But I don't think we quite thought that Bainimarama would go to this extreme...I don't think any of us thought things would go that far, and certainly go that far that quickly that the country would suddenly be overtaken by an illegal military regime."

Justice Lloyd says it is clear to him that Commodore Bainimarama is behind the president's actions.

"One can only assume that from the pace of what has occurred in the past few days, the president simply, from my observation, would not have been the one that was making these decisions," he said.

"Clearly he would have been acting on advice, and the advice could only have come from Bainimarama. I don't think one can say other than sensibly - he is the puppet and Bainimarama is the puppet master."

Independent judiciary

Justice Powell says the decision to sack the country's courts is a major setback for a judiciary which has largely maintained its independence since the 2006 coup.

"Following previous coups, the state of the legal system, to say the least, has fallen into disrepair," he said.

"It's taken years and years for cases to be heard. But in recent years, the local the judiciary, working very, very hard, have sought to ensure that a fair and functioning judiciary exists in Fiji. I guess they'd always be torn between not wanting to continue in these circumstances on the one hand, and on the other hand seeing litigants not having access to justice."

And Justice Douglas says it is important for international groups to pressure Fiji to return to an independent judiciary as soon as possible.

"A functioning system of justice, both civil and criminal, is very important to any country - as we pointed out in our judgement," he said.

"You have people who have been wrongly convicted who could rot away in jail, who could not be granted bail. People who've got civil courses of action their neighbours which they can't pursue; commercial courses of action which can't be pursued.

"Justice delayed is justice denied, they say."

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