February 04, 2007

Boiling a frog: From putsch to purge

By John Cameron
Special to Intelligentsiya

(Intelligentsiya comment: This commentary by lawyer John Cameron expresses exactly the sentiments behind Intelligentsiya. The military is doing its thing - stamping its authoritarian control in all areas of government. That may be good, it may turn out to be bad. But what we're more concerned about is the campaign of intimidation - the military telling us what not to say, what not to think. We must vigourously resist attempts to kill our freedom of conscience, freedom of opinion, freedom to differ. If we remain silent in the face of army intimidation, before long, we will be like the frog in the pot.)

Amphibians are poikilothermic: their body temperature adjusts automatically to changes in their environment, without their becoming aware of it. In theory this means that if one were to put a frog into a pot of cold water, and then increased the temperature gradually enough, the creature would be boiled alive before it became aware of the danger. When it comes to their human rights humans are not very different from frogs.

On December 5th 2006 at 6 pm on national television, the Commander of the Republic of the Fiji Military Forces, Commodore J. V. Bainimarama, announced that he had assumed executive authority of Fiji, as inter alia President of Fiji, and declared a State of Emergency. The same day the he purported to enact the Interim Military Government Regulations and the State of Emergency Regulations. The validity of the State of Emergency Regulations depends firstly upon the validity of the Interim Military Government Regulations; secondly, upon the Emergency Powers Act 1998 a valid enactment of the Fiji Parliament, and, finally, it is claimed, on the Public Order Act 1975, an enactment of the Fiji Parliament which may be unconstitutional and invalid, or partially repealed, at least in part. I leave to one side for the time being the rubbery doctrine of necessity.

It is convenient to commence with an examination of the Interim Military Government Regulations 2006. They are signed by J.V. Bainimarama, Commodore, Acting President of the Republic of Fiji Islands and Commander, Republic of Fiji Military Forces, and were published in an Extraordinary Republic of Fiji Islands Government Gazette on 29 December 2006. The self-proclaimed Acting President does not identify the source of his power to act as such, but simply states in reg. 1: The Interim Military Government shall have power to make laws for the peace, order and good Government of Fiji or any part thereof with respect to any matter whatsoever. He goes on to assert in reg. 2(1) that: The power of the Interim Military Government to make laws shall be exercised by means of Regulations signed by means of Regulations signed by the Head of the Interim Military Government. The purported effect of these provisions is the assumption of the legislative powers of the Parliament, one of the three branches of government, the others being the Executive, and the Judiciary. If the Regulations are invalid, as they must be, there being no valid constitutional power to enact them, it is unnecessary to examine their content. However, some of the more repugnant provisions may be noted. Reg. 5(2) provides that “The Executive Authority of the Republic of Fiji shall be vested in the Head of the Interim Military Government and may be exercised by him either directly or through persons or authorities subordinate to him.” By this power the self-proclaimed President purports to assume all of the powers of the second branch of government, the Executive. Then reg. 5(1) provides that: No question as to the validity of this Regulation or any other Regulation shall be entertained by any Court of Law in Fiji. In other words, by an unimpeachable regulation the self-proclaimed President purports by means of an ouster provision to limit the powers of the Judicial branch of government, at least insofar as concerns the validity of his legislative, and by extension his executive acts. Reg 5(3) provides that: The Executive Authority of the Republic of Fiji shall extend to the execution and maintenance of the Constitution of Fiji, as enacted, modified and supplemented by this Regulation or any other Regulation, and to all other matters whatever throughout Fiji. [emphasis added]. In other words the Acting President claims for himself the authority single-handedly to amend the Constitution, and to put beyond the reach of the Courts the power to examine the validity of that claim. It is against that background that the State of Emergency Regulation [sic] 2006, purportedly proclaimed on the same day, must be considered.

By its preamble the Regulation states: “WHEREAS given the state of emergency in the country and the potential risk to life and property, it is imperative that the current emergency situation continues in order to guarantee the safety and security of the people of Fiji and to maintain law and order. NOW THEREFORE, in exercise of the powers conferred upon me as the Head of the Interim Military Government of Fiji, and pursuant to the Public Order Act, I proclaim the following—… They are signed by J. V. Bainimarama assuming the same powers as in the Interim Military Government Regulations 2006. Again it is unnecessary to descend to the content of the Regulation, since if Commodore Bainimarama had no legal authority to proclaim it, then the Regulation as a whole is unlawful, invalid and of no effect, and any actions taken under it in the past or in the future are and will be unlawful, invalid and of no effect. Any power from the Interim Military Government Regulations 2006 can only be derived if those Regulations in turn are lawful, valid and effective, and, as has been seen, the Commander was unable to point to any lawful power which authorized him to make those Regulations. Accordingly, the State of Emergency Regulations have to rest on some other lawful power. The Commander refers only to the Public Order Act 1976.

This Act was originally an ordinance passed by the colonial power in 1969. After Independence it became Act No. 19 of 1976, without amendment, and evidently without regard to the Bill of Rights provisions in the 1975 Constitution. It was then, and now almost certainly remains in parts unconstitutional and invalid, being repugnant to a number of provisions in the Bill of Rights, in particular the now sections 31 and 32 of the 1997 Constitution, which guarantee freedom of assembly and freedom of association. “Every person has the right to assemble and demonstrate with others peacefully.” (section 31). Every person has the right to freedom of association.” (section 32). While those freedoms are not without limitations, which may be imposed by law, this is only to the extent that the limitation is reasonable and justifiable in a free and democratic society.” The Public Order Act 1976 would, in my opinion, require very substantial amendment in order to comply with the provisions of the present Constitution. However, the Public Order Act can be relevant only to the content of the State of Emergency Regulations 2006. It does not empower the grave constitutional step to the declaration of a state of emergency. That power can only exercised under powers conferred by the Constitution, and in circumstances laid down by the Emergency Powers Act 1998. To a considerable extent the Public Order Act 1976 may have been repealed and replaced by provisions of this later Act to the extent that they apply during a state of emergency.

The Emergency Powers Act 1968 by its long title is declared to be “An Act to Empower the President to Declare a State of Emergency”. It came into force at the same time as the Constitution. Section 2(1) provides: The President, acting on the advice of the Cabinet, may by notice in the Gazette proclaim a state of emergency in the whole or any part of the Fiji Islands. The President of Fiji is the person so appointed under the Constitution, and under the provisions of section 90The President and Vice-President are appointed by the Bose Levu Vakaturaga after consultation by the Bose Levu Vakaturaga with the Prime Minister.” Obviously the Commander was not such a person, and equally obviously he was not acting on the advice of the Cabinet. His proclamation of a state of emergency, was accordingly unlawful, invalid and of no effect, and no limitation of rights under the Constitution may be based on that unlawful and invalid act. However, the invalidity does not stem simply from a procedural defect and it is appropriate now to turn to the provisions of Emergency Powers Act 1998 in order to ascertain the circumstances in which a state of emergency may be lawfully declared.

The powers to declare a state of emergency are carefully circumscribed in order to remain within the provisions of the Constitution. Section 2(2) provides that the Cabinet may advise the President to proclaim a state of emergency under subsection (1) if, and only if, the Cabinet is satisfied that a public emergency has arisen as a result of the imminence of invasion or of armed conflict between the Fiji Islands and a foreign State. No such threat existed. Secondly, if a public emergency has arisen as a result of a natural disaster in respect of which the provisions of the Natural Disaster Management Act 1998 are inadequate. No such natural disaster existed.

Thirdly, if action has been taken or is immediately threatened by any person or group of persons of such a nature and on such a scale as to be likely to endanger the public safety; to deprive the community or a substantial portion of it of essential supplies or services; or to harm the national economy. The only such threat came from the Commander himself, and the RFMF members under his command. Finally, that for some other reason a grave emergency exists whereby the security or economic life of the state is threatened. Again the grave emergency existed only as a consequence of the actions, including the threats of action by the Commander. While the country’s economy may well have been in bad shape, it was not to be improved by the curtailment of citizen’s rights and the imposition of armed checkpoints. In 1987 when the Governor-General, Sir Penaia Ganilau, declared a state of emergency Parliament had been invaded by members of the RFMF and members of the Bavadra government detained. In 2000 a state of emergency can be said to have existed when Parliament was again invaded and Parliamentarians detained by George Speight and his supporters. The Speight attempted coup collapsed when he failed to attract the support of a majority in the RFMF who remained faithful to their oath. No such fidelity was to prevail on this occasion, and the putsch has this far proved successful. That does not mean, however, that the subsequent measures have been lawful and valid.

The legislators who passed the 1997 Constitution, and the Emergency Powers Act 1998 can scarcely have contemplated permitting a situation where an individual deliberately and consciously created a situation which could give rise to the proclamation of a state of emergency, and then installed himself or herself and declared a state of emergency to deal with that self-created situation. The proposition only has to be stated to be rejected.

The first section in Chapter 14 of the Constitution, section 187(1) provides that the Parliament may make a law conferring power on the President, acting on the advice of the Cabinet, to proclaim a state of emergency in Fiji, or in a part of Fiji, in such circumstances as the law prescribes. The Parliament has done so, subject to the limitations in section 187(1) by enacting the Emergency Powers Act 1998. The Act further provides by section 4 that upon declaring a state of emergency of the Act provides that if Parliament is not sitting the President must summon Parliament. Far from summoning Parliament, on the advice of his unconstitutionally installed Prime Minister, Dr Senilagakili, the Commander purported to dissolve the Parliament which he had already physically shut down. Since none of the requirements of either the Constitution or the Emergency Powers Act had been met, the conditions which permitted the declaration of a state of emergency did not exist, and consideration of the rubbery concept of necessity does not arise.

It is time to return to the frog. The frog, that is the Fijian community, appears oblivious to the danger presented by the rising temperature evidenced by the increasing erosion of its rights consequent upon the assertion by the RFMF of powers for which there is no legal basis. Reports of arbitrary detentions, humiliations, and beatings, the presence of military check-points manned by armed soldiers, and irregularities in the investigations of deaths of individuals in the military ambit, going back to October 2000, have created a climate of fear and intimidation unparalleled in Fiji’s modern history. It is hardly reassuring that the head of the interim administration is claimed by the deposed Police Commissioner to be a person of interest in a multiple murder inquiry which has been stalled for over six years. The curious appointment of Justice Gates to deal with delays and inefficiencies in the judicial system, and the questionable circumstances in which he was appointed are further cause for concern. The measure of that climate may be gauged from the sigh relief expressed by Tuesday’s editorial in the Fiji Times at the RFMF’s “interim Government's assurance to stop the ill-treatment of civilians at the hands of the military”, in other words the RFMF will cease an activity for which there was no lawful authority, but will reserve the right to resume if citizens do not comply with the provisions of the unlawful and invalid emergency regulations, in other words to persist in an unlawful activity if it is considered appropriate in the interests of national security as decided by the RFMF itself. It is worth bearing in mind that under the provisions of reg. 11(2) possession of a cane knife is unlawful where “intended or likely to be used for an aggressive or unlawful purpose”, and it will be the RFMF which decides after interrogation whether that test is met.

The Fijian community would do well to consider the warning of Pastor Niemoller. An early supporter of Hitler, by 1934 he had come to oppose the Nazis, and it was largely his high connections to influential and wealthy businessmen which saved him until 1937, when he was imprisoned, eventually at Sachsenhausen and Dachau concentration camps. He survived to be a leading voice of penance and reconciliation for the German people after World War II. There are various versions of his poem referring to different groups, including Jews, Catholics, gypsies and homosexuals, who are not included in the following version. The poem is well-known, frequently quoted, and is a popular model for describing the dangers of political apathy:

When the Nazis came for the communists,
I remained silent;
I was not a communist.

When they locked up the social democrats,
I remained silent;
I was not a social democrat.

When they came for the trade unionists,
I did not speak out;
I was not a trade unionist.

When they came for me,
there was no one left to speak out.

By that time the frog was dead. The Fiji frog could be merely par-boiled.

  • Dr John Cameron is a barrister of thirty years experience admitted to practice in Fiji, New Zealand, Western Australia, and the High Court of Australia. He has appeared in all jurisdictions in Fiji, including the Supreme Court, as well as before the Court of Appeal in New Zealand, the Full Court of the Supreme Court of Western Australia, and the High Court of Australia. His main area of practice is constitutional and administrative law.

1 comment:

Anonymous said...

This article is very informative and I personally posted many comments in the Fiji Times online site , about the legality of the State of Emergency which the Commander saw fit to declare off his own back !
My question to the establishment in Fiji would be , given that this article confirms the illegality of the declaration of a " state of emergency " (and I use no capital letters ! ) , and given that it has been confirmed that a prominent New Zealand barrister has been advising the Military on matters relating to this Coup D'etat , would that suggest that this particular barrister , is in fact implicated in an act of treason against the State of Fiji and if so , should be arrested in New Zealand ?