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Victor Lal was educated in his native Fiji Islands and at the University of Oxford and specializes in conflicts, coups and constitutionalism in multi-ethnic states. He was Reuters, Wingate and Research Fellow at Oxford. Victor Lal was Honorary Research Fellow in the Department of Scandinavian Studies, University College, London, Guest Nobel Fellow at the Norwegian Nobel Institute, and was an associate researcher on 'Project 1905: Swedish-Norwegian Relations for 200 Years', hosted by the University of Oslo. He has held visiting fellowships in Norway, South Africa, Australia and Fiji Islands. Among his publications include Fiji: Coups in Paradise-Race, Politics and Military Intervention and a forthcoming book Towards a World Without War: Andrew Carnegie, Peacemakers and Nobel Peace Prize, 1901-1951. He is completing a book on East African Indians and the Mau Mau Rebellion in Kenya and the biography of Justice Ransley Thacker, the judge who jailed Jomo Kenyatta. In 2008 Victor Lal was co-winner of Fiji’s prestigious Robert Keith-Reid Award for Outstanding Journalism.

Thursday, August 31, 2006

The Chaudhrys and rough justice

The Chaudhrys (Mahendra and Rajendra), Jokapeci Koroi, along with Lekh Ram Vayeshnoi and others are guilty of contempt of court for flagrantly and arrogantly disregarding the rule of law in the country and should, therefore, be hauled before Justice Roger Coventry to explain their actions.The punishment for contempt ranges from hefty fines to imprisonment.What evidence is there to hold them for contempt over their determination to discipline the so-called ‘Gang of Five’ - Krishna Datt, Poseci Bune, Felix Anthony, Agni Deo Singh and Atu Emberson-Bain for undermining the FLP’s leadership? In order to answer the above question, let us briefly examine the sequence of events. On the eve of the FLP national council meeting in Ba, Rajendra Chaudhry appeared on behalf of his father and Mrs Koroi to inform Justice Coventry that the disciplinary charges against the five had been withdrawn. What he legally did on behalf of his clients was to give an undertaking to the High Court that as far as his father and Mrs Koroi were concerned, the matter was effectively and judicially closed. And yet, despite the undertaking, the matter of disciplining the five was raised and even voted upon. In the eyes of the law if a person who gives an undertaking to the court subsequently breaches any of the terms in it, he may be held in contempt of court and may be imprisoned, fined, or have his assets seized.In this case, it is clear that since the issue of disciplining the five resurfaced at the Ba meeting and was even voted upon, both Mahendra Chaudhry and Mrs Koroi (and their lawyer Rajendra Chaudhry’s) actions are tantamount to contempt of court. But Rajendra Chaudhry claims the decision by the national council to discipline the five Labour executives is not contempt, for his father and Mrs Koroi “took no part in the disciplinary proceedings initiated by the council”.Chaudhry junior said the two Labour leaders withdrew the charges against the five laid in July, and based on that fact, he was “fairly confident” that the contempt of court issue would not stick. However, the fact of the matter is that both Mahendra Chaudhry and Mrs Koroi allowed the matter to be discussed at all during the meeting. There is no evidence to suggest that neither the two leaders nor Rajendra Chaudhry briefed the meeting of the undertaking that was given to Justice Coventry. That itself may even constitute a dereliction of duty on the part of Rajendra Chaudhry to advise his clients of the meaning and implication of the undertaking, and which could form a separate investigation by the Fiji Law Society for alleged professional misconduct. His father claims that the motion to discuss disciplinary action against the five was called by the Sigatoka and Lautoka branches. He also said he had not been served with the court order at the time of the Ba meeting. Why? Was it because his son, acting as the FLP lawyer had not, as legal convention requires, conveyed to his clients what had taken place in the High Court? Did Mahendra Chaudhry instruct his son to obtain a further clarification from Justice Coventry whether the matter could be discussed at all at the Ba meeting? After all, the FLP leader has a history of “high courts and boycotts” when he feels there has been a breach of the law. It was not very long ago when Justice Coventry had thrown out his writ to stop the recent general election. The validity of the High Court undertaking is not in question. It is quite clear that all three (the Chaudhrys and Mrs Koroi) are in contempt for failing to take reasonable steps to ensure that the undertaking was adhered to - a failure so gross as to demonstrate a disregard for the importance which should have been attached to the High Court undertaking. His clients walking out of the meeting when the matter of disciplining was raised is not a testimony to their commitment to the undertaking to the court. It is abundantly obvious that the walkout was all stage managed for the political underlings to take charge of the disciplinary process.Who called the Ba meeting? Who drew up the agenda for the meeting? Who authorised the handing over of the chairmanship of the meeting once Mahendra Chaudhry and Mrs Koroi walked out? What was, and what was not, to be discussed at the meeting? Let us look at their roles from a layman’s point of view, by presenting an alternative scenario. It was known, say, for some time that a fierce row had been brewing between the ‘Gang of Five’ and Mahendra Chaudhry and Mrs Koroi, with the two threatening to finish the five off with cane knives if they ever visited Ba. But it was eventually decided to settle the row peacefully over rice and curry meal, to be witnessed by their friends and foes. The five then agreed to the invitation for meal provided the cane knives were not present in the house.Their lawyer, in order to reassure them, even appeared before a High Court judge and gave an undertaking that his clients had not only withdrawn their threats but had also banished the lethal cane knives. The five finally arrive at the house as planned. In the course of the meal, two of the guests suddenly pull out the cane knives to carry out the previous threats. Instead of stopping them, Mahendra Chaudhry and Mrs Koroi, simply run out of the house. The five are murdered. In their defence, the two claim that they took no part in the killings, even though they had called the five for the meal into the house, and had even assured the High Court. And in the next breath they argue that although they had given an undertaking to the High Court that they would not wield the cane knives, they had never promised that other guests would not do so. In any case, when the cane knives were suddenly pulled out, they decided to walk out of the house.In the eyes of the law, their defence would be rejected, and they would be found guilty of conspiring to murder. After all, it was they who hosted the feast. It was they who had promised to banish the cane knives. It was therefore their duty to ensure that the cane knives were not present in the house nor any visitors were allowed to come with their own. What took place at the Ba meeting was nothing short of a conspiracy to politically murder the ‘Gang of Five’. It was a flagrant disregard of the implicit undertaking that was given to Justice Coventry. It was an attempt to dish out rough justice to the ‘Gang of Five’. It was contempt of court.There are two types of contempt of court: criminal and civil. In order to find out whether the Chaudhrys and Mrs Koroi are guilty of civil contempt, one has to take into account whether the civil contempt involved disobedience to a court order or breach of an undertaking given to the court in civil proceedings. There is no doubt that by allowing the disciplinary proceedings to go ahead (the one in Ba and now later in Nadi), Mahendra Chaudhry and Mrs Koroi are, in my opinion, in contempt of court. Mr Vayeshnoi claims that FLP leader Chaudhry has drafted the charges. The Ba meeting mirrors the events surrounding the dismissal of Mahendra Chaudhry as Prime Minister during the hostage crisis. The late President, Ratu Sir Kamisese Mara, in order to assume emergency powers to deal with the hostage crisis, had dismissed Mr Chaudhry and appointed the former FLP Labour Minister Ratu Tevita Momoedonu in his place on 27 May 2000 so that Ratu Momoedonu could ‘advise’ the President to suspend Parliament and assume emergency powers.Upon tendering the requisite advice which took only a few minutes, Ratu Momoedonu promptly resigned. On 14 March 2001, Ratu Momedonu was once again appointed as PM when the Appeals Court had ruled that the interim government was illegal, and had ordered Mr Chaudhry’s 1999 government should be reinstated. The new President, Ratu Josefa Iloilo, instead re-appointed his nephew Ratu Momedonu in order for the latter to render his formal advice to the President to dissolve Parliament and call a general election, which duly took place.Mr Chaudhry bitterly condemned both the Presidents, describing their actions as nothing but legal backhands to deprive him of the Prime Ministership. What about the Ba meeting? Democracy cannot flourish where one group is able to ride rough shod over the rule of law in the country. In Mahendra Chaudhry’s case, he has made the court his most popular legal hunting ground since 2000. It is time Justice Roger Coventry called him up to explain to the High Court and the nation why there should be two laws - one for the Labour leader, and one for others.And if there is a contempt of court, he should not hesitate to dish out the severest punishment (even imprisonment) to Mahendra Chaudhry, and Mrs Koroi (and others who took part in the disciplinary proceedings and are still doing so) for failing to practise what they have been preaching the country to uphold - the rule of law and fair play.

Friday, August 18, 2006

FLP colluded in restoring law and order in Fiji

The FLP MP, Mahendra Pal Chaudhry, is once again on the offensive, attacking the President, the Prime Minister, and the Royal Fiji Military Forces, for allegedly violating the rule of law in the country. Most simply put, as reported by the Fiji Sun recently, he has accused the two holders of high political office, and the army, which is the last bulwark of law and order, of allegedly colluding to exclude the FLP from sharing political power. In particular, he now claims that ‘the nation would not be in the present condition were it not for the farce the President enacted in March 2001, when he appointed Ratu Tevita Momedonu as caretaker Prime Minister for 24 hours’.What is the real truth? The answer lies in the re-examination of the Fiji Court of Appeal judgment of 14 February 2003, and other factual matrix following the seizure of the Chaudhry government by George Speight and his henchmen.But before we recall the judgment, it is worth asking Chaudhry to explain to the nation why one of his own MPS, Ratu Tevita Momedonu, agreed to abandon his political master, than held prisoner inside the parliamentary complex? We do not know the answer, but Ratu Tevita was one of just a string of Peoples Coalition Government MPS who deserted Chaudhry by the time the country went to the polls from 25 August to 1 September 2001. In fact, many of his FLP colleagues and supporters went on to form the New Labour Party of Fiji, led by Dr Tupeni Baba. We do not know why Ratu Tevita crossed the political fence but Baba, at least, went public to allege that the Indo-Fijian FLP MPS had betrayed him when it came to the post of Prime Minister of Fiji.We may recall that the Reverend Akuila Yabaki and Others appealed against the decision of Justice Michael Scott, delivered in the High Court on 11 July 2001. Basically, we are interested in two of the four declarations, namely (b) a declaration that the purported dismissal by the President of Hon. Mahendra Pal Chaudhry as the Prime Minister on 14th March, 2001 is inconsistent with the Constitution, and is therefore null and void; and (d) a declaration that the purported appointments of Hon. Senator Laisenia Qarase as Prime Minister and of other persons as Ministers of a caretaker government for Fiji made on or about 15th, 16th and 19th March 2001 are inconsistent with the Constitution, and each such appointment is null and void.Justice Scott held that the actions of the President were either constitutional or else justified by the doctrine of necessity. Justice Scott had delivered his judgment under conditions of urgency. Writs for the election were planned to be issued the following day and a date for the lection had already been announced. As Justices Barker and Ward pointed out in their own judgment, separate from Justice Davies, Chaudhry’s advice to the acting President, tendered on 1 March 2001, at a time when he was undoubtedly the Prime Minister, was to recall Parliament. Chaudhry envisaged a short session only-one in which the Constitution could be changed to substitute ‘first past the post’ voting system instead of proportional representation as provided in the Constitution. He saw this change as desirable before the election which he and others wanted. Justice Scott, as already noted, had considered that such constitutional breaches as there may have been were excused under the doctrine of necessity. Justices Barker and Ward ruled that for the Court of Appeal ‘to enquire whether he was correct would involve an examination of a detailed factual situation that no longer exists and cannot be resolved’. The two judges, however, ruled that the Fiji Constitution, by the prescriptiveness of s109(1) appear to circumscribe the President’s power of dismissal of a Prime Minister and to have required the House and not the President to determine whether the Prime Minister has lost its confidence.As I have written elsewhere, although the two judges are right in the strict interpretation of the Constitution, the circumstances as than existed in Fiji, with the FLP MPS quarrelling with each other, and frankly speaking there was no ‘government in waiting’ as ruled earlier by another Court, the departures from the strict requirements of the Constitution as might have occurred were justified by the doctrine of necessity. We hope the politicians will thoroughly re-examine s109(1) which, like the multi-party concept, is fatally flawed in the world of Realpolitik. In fact, as reflected in the President’s than statement, he understood that he was left with no choice but to step outside the strict requirements of the Constitution in his quest to return the nation to peaceful parliamentary rule. Meanwhile, applying the so-called ‘Salem legal principle’ Justices Barker and Ward were not prepared to consider whether Justice Scott was correct or not in applying the doctrine of necessity. They went on to note that ‘because the elections have been held, it is too late to ‘turn the clock’ back. The elections were duly held despite any constitutional irregularities which may have preceded them. The nation has returned to democratic rule’.The court was asked to look at (a) the dismissal of Chaudhry by the President without a prior vote of no confidence in the House, (b) the appointment of the first caretaker Prime Minister Momedonu, (c) the advice of Momedonu to dissolve Parliament, (d) the resignation of Momedonu after only one day in office and (e) the appointment of a new caretaker Prime Minister Qarase who was not a member of the House of Representatives. Justice Scott did not consider the questions raised by the declarations sought before Justices Barker, Ward and Davies in a vacuum, divorced from what he perceived as the factual matrix in which the impugned decisions had been made.Consequently, in dismissing the appeal brought by Yabaki and Others, Justices Barker and Ward, ruled that ‘it is too simplistic to consider in isolation from the factual matrix the constitutional questions posed in this moot situation. They cannot properly be answered without a full review of the factual situation in Fiji in March 2001 following the Prasad decision. They cannot properly be decided without full consideration of numerous authorities on the doctrine of necessity. In other words, a decision on this moot case cannot be made without extensive consideration of factual matters’.The separate judgment of Justice Davies is worth recalling to dismiss outright Chaudhry’s wild allegations about the events of March 2001. As Justice Davies ruled, ‘the person directly affected by the dismissal, Mr Chaudhry, made no such claim in legal proceedings (i.e. his dismissal was unconstitutional). Mr Chaudhry is not a party to the present proceedings and no affidavit from him was filed. Mr Chaudhry appears to have accepted the dismissal. Thereafter, he did not act as seek to act as Prime Minister of Fiji. He participated in the general elections which were held in August-September 2001 and his current position, as illustrated by the decision of this Court in Chaudhry v Qarase (Court of Appeal, 15 February 2002, unreported) is that he and members of his party are entitled, by virtue of s.99(5) of the Constitution, to participate in the Cabinet of Mr Qarase’s Government.’Justice Davies forcefully reminded us, and inter alia to Chaudhry: the following: ‘Because Mr Chaudhry accepted his dismissal, whether or not he regarded it as unconstitutional, there is no reason to doubt that the dismissal took effect in law as a dismissal. In light of the fact that Mr Chaudhry’s dismissal could not be undone, the principal challenge to the appointments of Ratu Tevita and Mr Qarase as caretaker Prime Ministers’ fall away...The declarations suffer from the further defect that they fail to deal with the point that, were the President’s acts inconsistent with the Constitution, they may have been saved by the doctrine of necessity…Indeed, I doubt that it is in dispute that the actions taken by the President and the holding of the general election in 2001 were effective to restore law and order after the tumultuous events of 2000 and did return the country to Parliamentary democracy at an early time. It is of significance that the President’s actions appear to have received the support of the general populace.’And as Justice Davies has reminded us, Chaudhry obligingly went to the polls, hoping to return as Prime Minister.He should, therefore, explain to the nation WHY he contested the election if he felt, as he now claims, that the President, the Prime Minister, and the Army did not observe the rule of the law in March 2001.He should explain to us why he was negotiating with his arch political rivals, Conservative Alliance Matenitu (CAM) after the general elections, to see if he could form an alternative government to Qarase’s SDL?Chaudhry and his FLP must stop fooling the nation.It is time for them to declare whether they want to be part of the running of the country or to stay out.The political merry ground must come to an end.As I have consistently maintained, the invocation of the Doctrine of Necessity, was the only powerful weapon in the armoury of the President to prevent Parliament from turning into a human slaughterhouse.The FLP should be grateful to the President in the nation’s hour of need.

Chaudhry should be disciplined

In his role as a judge, jury, and executioner on the fate of the so-called rebellious ‘Gang of Five’ at a press conference in Suva Mahendra Pal Chaudhry blatantly breached the fundamental rule of confidentiality of the candidate selection process and the deliberation in the selection committee. The National Council of the Fiji Labour Party at the much-awaited meeting should, therefore, equally punish him. By suddenly trying the five through the media, instead of waiting for the National Council meeting, Mr Chaudhry has also severely compromised the possibility of a fair hearing that he had been claiming the five (Krishna Datt, Poseci Bune, Agni Deo Singh, Felix Anthony and Atu-Emberson Bain) were to receive at the disciplinary hearing.Besides, the National Council should also charge Mr Chaudhry with engaging in activities to undermine the standing and work of two fellow FLP MPs, in this particular instance Felix Anthony and Krishna Datt. In his press conference, Mr Chaudhry claimed that at the 11th hour, Mr Datt threw the spanner in the works by moving that Mr Anthony, instead of Vijay Singh, be endorsed for the Vuda Open seat. He said he objected to this and pointed out that this was in breach of FLP procedures, as Mr Anthony had not applied for a seat. In other words, Mr Anthony was coming through the backdoor to contest the Vuda Open seat, when he had already declined Mr Chaudhry’s request, at the beginning to consider contesting the Lautoka Indian Communal seat vacated by Dr Ganesh Chand.If we are to believe Mr Chaudhry, he now seems to be suggesting to the general populace that Mr Anthony should not be truly regarded as an FLP backbencher of Mr Chaudhry because, according to Mr Chaudhry, Mr Anthony had breached the FLP Constitution which requires applications to be submitted by all intending candidates. This should be a sufficient ground to bring Mr Chaudhry to book. In the same press conference, Mr Chaudhry asked: ‘Why was it so important to bring Felix Anthony into the House of Representatives in breach of the Party constitution and, at the cost of injustice to another sitting MP.’ Mr Chaudhry was referring to the sitting MP Vyas Deo Sharma, whom he (Mr Chaudhry) claims he was defending from injustice that was being perpetrated by the Management Board, especially%2