BENEFICIARY OF MRS QARASE'S PLEA TO REJECT FFP PENSION, MALICE and PUNISHMENT: The then Interim Prime Minister Bainimarama, whose PS in the PM's Office was Colonel PIO TIKODUADUA, withheld the late Prime Minister Qarase's pension that was legally due to him, for EIGHT long years until 2014. Today, Tikoduadua is serving in the Coalition of another Coupist, RABUKA.Coupist Frank Bainimarama:"A sum of $2.7 million has been fritted away by the regime to accommodate the greed of those at the top and in order to win their loyalty for the regimes unaccounted spending."
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*Aiyaz Khaiyum was sketching out FFP case for possible military intervention. It reminds us of events leading up to the 5 December 2006 COUP, when Coupist Frank Bainimarama allegedly asked FLP leader Chaudhry to provide him evidence against the Qarase government so he could remove Prime Minister Laisenia Qarase from power. |
*TRIBAL WELCOMES AND CHIEFS blessings i-Taukei Coalition Cabinet Ministers in FMF Gymnasium and other public venues - their 'SONS OF THE PROVINCES' - has sent jitters among the RFMF High Command, who are arguing that such ceremonies are causing provincial divisions within the rank and file i-Taukei soldiers. |
*The latest was the public ceremony accorded to the new Attorney-General SIROMI TURAGA from his PROVINCE which the RFMF High Command argues is unacceptable from both constitutional, and military, viewpoints.
*According to military sources, once Turaga became the Attorney-General, he should have flung his cultural, religious, and provincial HAT away, and declined to be entertained and blessed by his PROVINCE.
*After all, in 1987 the racist thug and coupist SITIVENI RABUKA had tapped the emotions and military skills of his Cakaudrove soldiers to overthrow the Bavadra government. Most of the ten hooded gunmen were from either his own village or the surrounding areas.
*The RFMF, according to sources cannot, under Section 131, standby and watch the gross abuse by Coalition Cabinet ministers of provincial links and loud cheering to GOD, hence the talk of pre-emptive military intervention against the Coalition government to STOP the military, as an institution, from fracturing along Tribal and Christian denominational lines. Most ceremonies of welcome and 'Tagi to the Kalou' are mostly Rabuka's Methodism in appearance and biblical messages.
*A breakdown of Turaga's votes reveal most of his VOTES came from his Eastern Province, where his people voted on tribal lines.
*Our acquaintance and friend will be well-advised to discontinue entertaining such lavish ceremonies of welcome, and that includes other i-Taukei Cabinet Ministers, who want to be feted as 'Our Son of the Province' is now Rabuka's Cabinet Minister.
*For the RFMF High Command will remind the new Attorney-General of Oliver Cromwell's ringing words, 'Necessity Has No Law'.
*To put it bluntly, 'The Doctrine of Necessity' is one of many powers the RFMF High Command has at its disposal, to preserve the RFMF as a united institution, devoid of tribal, provincial, and religious strife, and as the guardian of the nation under the 2013 Constitution of Fiji (whether the Coalition likes the Constitution or wants to lump it).
Its a FLIGHT OF FANCY to believe that RFMF will just take it lying down. We are already hearing that Coalition wants to SLASH RFMF
"As you know your Excellency [President of Kiribati], Fiji for the first time elected its Prime Minister on the floor of Parliament and I was elected by the power of the majority of one. It was on Christmas eve and it was by secret ballot, the following day the world stood still to remember the birth of one child in Bethlehem. I believe it was the power of that one child in our prayers for so many years that gave us that majority of one on the floor of parliament."
RELIGION, DIPLOMACY AND ABUSE OF CHRISTIANITY:
*In 1987, God whispered into the ears of the racist in his sleep to carry out his coup, overthrow the Bavadra government, disenfranchise the Indo-Fijians, urban Fijians and other minorities in Fiji, and become the Prime Minister of Fiji under a racist and autocratic 1990 Constitution of Fiji. He also obtained IMMUNITY in that Constitution.
*In his two appointments as Prime Minister, Rabuka was assisted by the votes of FLP leader Mahendra Chaudhry in 1992, and the NFP leader Jai Ram Reddy in 1994, for him to become Prime Minister.
*In December 2022, it was Reddy's successor BIMAN PRASAD, in exchange to become Deputy Prime Minister and Finance Minister, went into Coalition with Rabuka to form the new government, with Coupist as Prime Minister and Minister for Foreign Affairs.
*Obscenely, the Methodist lay preacher (and his i-Taukei Cabinet Ministers) never tire of invoking GOD to celebrate their wins and the formation of the Coalition government, as if other races don't matter.
*The fundamentalist Christian zealot once again dedicated his premiership to his Christian GOD, as he informed his host, the President of Kiribati during HIGH TABLE dinner on 20 Janaury 2023:
"As you know your Excellency, Fiji for the first time elected its Prime Minister on the floor of Parliament and I was elected by the power of the majority of one. It was on Christmas eve and it was by secret ballot, the following day the world stood still to remember the birth of one child in Bethlehem. I believe it was the power of that one child in our prayers for so many years that gave us that majority of one on the floor of parliament."
*In 1987, most Pacific Island leaders had been brainwashed into accepting his coups against Indo-Fijians because, he told them, these Indo-Fijians were NOT Pacific Islanders. Moreover, he told them that 'Hindus and Muslims are PAGANS who must be converted to Christianity, otherwise we (i-Taukei and Pacific Islanders) will have to be converted and become PAGANS.'
*They should go back to India, he screamed from the balcony of the Suva Civic Centre. By 2023, he had achieved his original mission, and today Indo-Fijians are a minority in Fiji, and the region, and his Cabinet is predominantly i-Taukei dominated, with three Indo-Fijians as Cabinet Ministers.
RABUKA: ”No, no, no…. that was a fact. I was in camp. I went in and I was called by Home Affairs operations room and I said to them, well tell the Commander, I’m going in there. I didn’t know where he was.”
BAINIMARAMA: ”Rubbish, he was there for a reason. He had his uniform with him. All my soldiers on duty saw him on his uniform at the back and in fact he spoke with some senior colonels to say I want all the colonels to bind together and give the authority to take over the command of the military.”
BAINIMARAMA: ”Rubbish, he was there for a reason. He had his uniform with him. All my soldiers on duty saw him on his uniform at the back and in fact he spoke with some senior colonels to say I want all the colonels to bind together and give the authority to take over the command of the military.”
*Munro Leys lawyer and Rabuka's nominee on the COC, John Apted, is representing the former Solicitor-General Sharvada Sharma who was dismissed after a complaint from Election Supervisor Saneem following the Nawaikula case.
*Its not the actual bias but the perception of bias that is at the heart of any judicial decision, and please cut out the CRAP, 'Oh, FFP did the same to Sharma. Beware, Rabuka's STASIs are making a comeback.'
Fijileaks: The composition of the Constitutional Offices Commission members is a JOKE (both under FFP and Coalition governments) where the Prime Minister, the Attorney-General, the Leader of the Opposition and their nominated members sit, deliberate, and pass judgment in the appointment to and suspension of individuals from powerful institutions. *Since the establishment of the COC in the Rabuka-Reddy 1997 Constitution, the COC is lop-sided in membership and in favour of the incumbent government of the day.
*The Fiji Sun has reported that Coupist Rabuka, as chair of the COC, overruled one of his own Government nominees and has sent Election Supervisor 'packing' even before Saneem presented his constitutionally required Report on the 2022 election.
*Saneem has been suspended with full pay after someone complained to the Attorney-General about alleged misbehaviour on Saneem's part.
*The only one who has publicly welcomed the suspension is the FLP leader Chaudhry who was barred from contesting the 2018 general election because of the currency conviction. Earlier in the month, he wanted Saneem suspended from office to permit an independent inquiry into his conduct
“In our view he should be disciplined on his return from overseas and suspended from office to permit an independent inquiry into the 2022 electoral process.”
Where is Supervisor of Elections Mohammed Saneem?
Labour Leader Mahendra Chaudhry has questioned the absence of the Supervisor of Elections, Mohammed Saneem, from the country soon after the election results were finalised.
“Saneem left the country after the Writ of Election was returned to the President on 19 December 2022.
“ As Supervisor he is required under s109 (1) of the Electoral Act to submit a report of the results of the elections in the approved form to the Electoral Commission within one month.”
“ In our view he should be disciplined on his return and suspended from office to permit an independent inquiry into the 2022 electoral process.”
FLP leader Mahendra Chaudhry, 6 January 2022
Dismissed Solicitor General Sharvada Sharma’s lawyer, Jon Apted gave details about the suspension and sacking of Sharma in court today while making his submission for their application to seek leave for judicial review.
Sharma filed legal action in relation to the termination of his employment on the 12th of November last year by former President Jioji Konrote.
The legal action is against the President of Fiji, the Judicial Services Commission and the Attorney General of Fiji.
While making submissions today, Apted says this is a case where a former public servant who had spent 24 years exclusively in government legal services – the last 10 of which in an acting or substantive capacity as Solicitor General was suspended without pay and then dismissed by the President.
Apted told the court that Sharma says this was in breach of the relevant provisions of the constitution governing the process and he was not accorded his common law rights to natural justice.
The Munro Leys partner says Sharma’s constitutional rights to due process have also been infringed.
Apted adds the decisions being challenged have left Sharma and his family without income and they adversely affected Sharma’s psychological state.
He says it has also adversely affected Sharma’s standing in the community because he held one of the highest offices in this land and there were media and social media reports about what happened.
Apted says Sharma has law degrees from the University of Waikato and the University of London and since being admitted to the bar in 1997, Sharma has given his whole professional life to this country and has not worked for any other employer other than the Government of Fiji.
He further says Sharma was first appointed Acting Solicitor General in 2011 and appointed substantively in 2014.
Apted says the background to this case is the Niko Nawaikula case.
He adds in July to August 2021, Sharma and a Principal Legal Officer in the Attorney General’s Office represented the Supervisor of Elections and the Attorney General in a petition brought in to the Court of Disputed Returns by Nawaikula.
Apted says Nawaikula had lost his seat in parliament.
He adds the court ruled in favour of Nawaikula, and the Supervisor of Elections after this decision, expressed dissatisfaction with representation by Sharvada Sharma and his associate and brought a complaint against Sharma to the Independent Legal Services Commission.
Apted went on to say that Sharma was given that complaint by the Chief Registrar and responded to it and it was a complaint under the Legal Practitioners Act. He says Sharma continued at work.
Apted told the court that on 16th September 2021, the Prime Minister summoned Sharvada Sharma to his office where Sharma was informed that the Prime Minister had been hearing things and he wanted Sharma to resign.
He says Sharma denied any wrong doing and sought time to explain.
Apted further says Sharma was given a short time to explain in writing which he did and Sharma explained that he had not done anything wrong and that he sees no reason to resign.
He adds that Sharma also told the Prime Minister in writing that the Judicial Services Commission was the proper authority to consider any complaint and deliberate on it and hear the complaint in a procedurally correct manner required under the constitution.
Apted says Sharma expressly reserved all of his rights.
He also revealed that on the following Monday, the Prime Minister requested Sharma to go to his office immediately and the Prime Minister gave Sharma a pre-prepared resignation letter to sign.
Apted says Sharma refused to sign it.
He adds that as Sharma left the Prime Minister’s Office his phone was taken off him by a security guard and when he went back to the Attorney General’s Office, his laptop was taken off him by a security guard as well.
Apted told the court that Sharvada Sharma had not been subject to any disciplinary proceedings and had not been suspended but the executive acted to remove his tools of office.
The Munro Leys Partner says Sharma then called the Chairperson of the Judicial Services Commission and informed him about what had just happened.
Apted told the court that the Chairperson of the Judicial Services Commission informed Sharma that he had received a telephone call from the Prime Minister requesting that Sharma be immediately suspended.
He says the Chairperson of the Judicial Services Commission told Sharma that he is calling a meeting of the Commission the same afternoon to consider suspension.
Apted further adds that during the phone conversation, the Chairperson of the Judicial Services Commission told Sharma that his suspension would be with pay as usual.
He says at 7.30pm that evening, the suspension letter was delivered to Sharma and it stated that it comes from the President.
Apted says the letter informed Sharma that the President had received advice from the Judicial Services Commission on allegations of misbehaviour and the President was suspending Sharma pending the appointment of a tribunal.
It was heard in court that the letter stated that Sharma would also be suspended without pay.
Apted says on Diwali Day on 4th November 2021 which was a Thursday, a police officer appeared at Sharma’s home at around 2pm and delivered a letter which enclosed the complaint by the Supervisor of Elections to the Judicial Services Commission and 31 questions from the Judicial Services Commission.
He adds the letter set out 31 questions across three pages requiring Sharma’s response by 4pm Saturday, 6th November 2021.
Apted further says Sharvada Sharma only had one working day to respond and was unable to seek legal advice.
He adds Sharma was also concerned he was being asked specific questions as opposed to being asked to respond to the complaint which was the normal practice.
Apted stresses that the time given to answer the questions was unreasonable and unfair given that the Judicial Services Commission was sitting on the complaint for seven weeks.
He further says this is fine but that does not mean that when you decide to take action you give the subject of the complaint two days of which one is a working day.
Apted went on to say that Sharma was being asked to respond in the middle of his solemn religious holiday.
He told the court that it was like giving a Christian a letter to answer during Christmas time or Easter while they are busy singing in church and praising Jesus.
Apted revealed in court that on 10th November, Sharma was served with the termination letter from the Office of the President and it was signed by the President.
The Munro Leys Partner read the letter which says that the President agreed that the allegations in the complaint against Sharma are of a factual nature and do not warrant the appointment of a tribunal.
Sharma filed legal action in relation to the termination of his employment on the 12th of November last year by former President Jioji Konrote.
The legal action is against the President of Fiji, the Judicial Services Commission and the Attorney General of Fiji.
While making submissions today, Apted says this is a case where a former public servant who had spent 24 years exclusively in government legal services – the last 10 of which in an acting or substantive capacity as Solicitor General was suspended without pay and then dismissed by the President.
Apted told the court that Sharma says this was in breach of the relevant provisions of the constitution governing the process and he was not accorded his common law rights to natural justice.
The Munro Leys partner says Sharma’s constitutional rights to due process have also been infringed.
Apted adds the decisions being challenged have left Sharma and his family without income and they adversely affected Sharma’s psychological state.
He says it has also adversely affected Sharma’s standing in the community because he held one of the highest offices in this land and there were media and social media reports about what happened.
Apted says Sharma has law degrees from the University of Waikato and the University of London and since being admitted to the bar in 1997, Sharma has given his whole professional life to this country and has not worked for any other employer other than the Government of Fiji.
He further says Sharma was first appointed Acting Solicitor General in 2011 and appointed substantively in 2014.
Apted says the background to this case is the Niko Nawaikula case.
He adds in July to August 2021, Sharma and a Principal Legal Officer in the Attorney General’s Office represented the Supervisor of Elections and the Attorney General in a petition brought in to the Court of Disputed Returns by Nawaikula.
Apted says Nawaikula had lost his seat in parliament.
He adds the court ruled in favour of Nawaikula, and the Supervisor of Elections after this decision, expressed dissatisfaction with representation by Sharvada Sharma and his associate and brought a complaint against Sharma to the Independent Legal Services Commission.
Apted went on to say that Sharma was given that complaint by the Chief Registrar and responded to it and it was a complaint under the Legal Practitioners Act. He says Sharma continued at work.
Apted told the court that on 16th September 2021, the Prime Minister summoned Sharvada Sharma to his office where Sharma was informed that the Prime Minister had been hearing things and he wanted Sharma to resign.
He says Sharma denied any wrong doing and sought time to explain.
Apted further says Sharma was given a short time to explain in writing which he did and Sharma explained that he had not done anything wrong and that he sees no reason to resign.
He adds that Sharma also told the Prime Minister in writing that the Judicial Services Commission was the proper authority to consider any complaint and deliberate on it and hear the complaint in a procedurally correct manner required under the constitution.
Apted says Sharma expressly reserved all of his rights.
He also revealed that on the following Monday, the Prime Minister requested Sharma to go to his office immediately and the Prime Minister gave Sharma a pre-prepared resignation letter to sign.
Apted says Sharma refused to sign it.
He adds that as Sharma left the Prime Minister’s Office his phone was taken off him by a security guard and when he went back to the Attorney General’s Office, his laptop was taken off him by a security guard as well.
Apted told the court that Sharvada Sharma had not been subject to any disciplinary proceedings and had not been suspended but the executive acted to remove his tools of office.
The Munro Leys Partner says Sharma then called the Chairperson of the Judicial Services Commission and informed him about what had just happened.
Apted told the court that the Chairperson of the Judicial Services Commission informed Sharma that he had received a telephone call from the Prime Minister requesting that Sharma be immediately suspended.
He says the Chairperson of the Judicial Services Commission told Sharma that he is calling a meeting of the Commission the same afternoon to consider suspension.
Apted further adds that during the phone conversation, the Chairperson of the Judicial Services Commission told Sharma that his suspension would be with pay as usual.
He says at 7.30pm that evening, the suspension letter was delivered to Sharma and it stated that it comes from the President.
Apted says the letter informed Sharma that the President had received advice from the Judicial Services Commission on allegations of misbehaviour and the President was suspending Sharma pending the appointment of a tribunal.
It was heard in court that the letter stated that Sharma would also be suspended without pay.
Apted says on Diwali Day on 4th November 2021 which was a Thursday, a police officer appeared at Sharma’s home at around 2pm and delivered a letter which enclosed the complaint by the Supervisor of Elections to the Judicial Services Commission and 31 questions from the Judicial Services Commission.
He adds the letter set out 31 questions across three pages requiring Sharma’s response by 4pm Saturday, 6th November 2021.
Apted further says Sharvada Sharma only had one working day to respond and was unable to seek legal advice.
He adds Sharma was also concerned he was being asked specific questions as opposed to being asked to respond to the complaint which was the normal practice.
Apted stresses that the time given to answer the questions was unreasonable and unfair given that the Judicial Services Commission was sitting on the complaint for seven weeks.
He further says this is fine but that does not mean that when you decide to take action you give the subject of the complaint two days of which one is a working day.
Apted went on to say that Sharma was being asked to respond in the middle of his solemn religious holiday.
He told the court that it was like giving a Christian a letter to answer during Christmas time or Easter while they are busy singing in church and praising Jesus.
Apted revealed in court that on 10th November, Sharma was served with the termination letter from the Office of the President and it was signed by the President.
The Munro Leys Partner read the letter which says that the President agreed that the allegations in the complaint against Sharma are of a factual nature and do not warrant the appointment of a tribunal.
KAI VATA APPOINTMENTS:
*Rabuka himself is PITA WISE's brother-in-law/tavale through the Fiji Times reporter MARGARET WISE who bore Rabuka a son during his term as Prime Minister from 1992 to 1999. In fact, Rabuka bought his son and his mother a home at Raiwasa.
The late Russell Hunter to Fijileaks Editor-in-Chief, 27 May 2008:
"Vayeshnoi aka the stick insect is quite wrong. It is not well known etc etc. that Margaret was sacked (by me) for indiscipline, but that won't stop the daaku. That said, I think the FT was ill-advised to re-employ her. She was kicked out of the US for overstaying."
Editor: "I dont know anything about her. Isn't she Rabuka's mistress or something of that sort? On the other hand, one could say the same about many others who have joined the regime."
Hunter: "True. She was Rabuka's mistress. She had his baby and a paternity suit followed involving DNA evidence which said the child had a 99.9 per cent chance of being Rabuka's. He still denied it. She was very bitter about it."
The Fiji Labour Party's official website, 27 May 2008:
[The Fiji Labour Party has crticised The Fiji Times for re-employing a reporter who had brought enormous disrepute to the paper and created national instability with her fabricated, distorted and sensationalized news reporting in 1999/2000.
"By re-employing this discredited reporter, The Fiji Times has clearly exposed its political agenda, and compromised its credibility' said Lekh Ram Vayeshnoi, FLP's assistant secretary general. "It is well known that Margaret Wise was forced to leave The Fiji Times in disgrace. I am therefore very much surprised that the paper should now re-employ a person whose integrity and credibility as a reporter is seriously in question," he said. Her blatant political bias and misreporting associated with her very close liaison with a number of prominent politicians in the Opposition and extremist nationalist quarters at the time, has been the subject of severe criticism not only from the FLP, but academics, journalists and other independent observers in the immediate post 2000 coup period.
It is also well known that feature articles that were written by a certain bureaucrat were being run by The Fiji Times under the name of Margaret Wise. Staff in the Fiji Times newsroom as well senior management were well aware of this duplicity...This is an issue that the Media industry in Fiji as well as the Media Council should take up seriously. The Fiji Times, as a member of the Media, should not be allowed to bring disrepute to the entire industry through such irresponsible and questionable behaviour," Mr Vayeshnoi said.
*Pita Wise (the Wise family are from Wainividio, Navua) is also the brother-in-law of the SPEAKER Ratu Naiqama Lalabalavu, who is Rabuka's chief as Tui Cakau. Wise was with SODELPA and later followed Rabuka to PAP, along with Naiqama.
*Like Parmesh Chand, Wise needed to be holding a substantive post in the Public Service before he could be appointed to act as Permanent/Acting Secretary.
*Both, Wise and Chand are being recruited from outside the Public Service hence due process has not been fully complied with so the appointments contravene the Public Service Act and PSC Regulations under both the 2013 Constitution and also under Sitiveni Rabuka’s own 1997 Constitution of Fiji
*As we mentioned earlier, the only legitimate way Rabuka and the Coalition government can circumvent the rules is to appoint Wise and Chand as Advisers or Consultants instead, not as PS where due process is necessary.
*Why can't someone get a lawyer to file an injunction in the Fiji High Court regarding both the appointments?
*Here, in Wise's appointment, Commander Kalouniwai could claim is another example of political interference in the Public Service or blatant breach of the Public Service Act.
* BROTHER-IN-LAW NEXUS:
The appointment of Wise, the brother-in-law of the Speaker, reminds us of Francis Kean, the current Prisons Commissioner, who was convicted of manslaughter and jailed but because he was the BROTHER-IN-LAW of the then Prime Minister Frank Bainimarama, Kean never spent a night in jail for his crime nor was he instantly dismissed from his post as Navy Commander, as mandated under the PSC Act and Regulations.
Sadly, while Fiji has changed one Coupist Emperor for Another, in Rabuka, the stench from their stinking underwear continues to permeate and pollute the corridors of power: return of the Kai Vata politics.
TRADING GOVERNMENT QUARTERS: We are reliably informed by our military sources that Rabuka might move into the house which is being renovated at Berkeley Crescent, directly opposite the RFMF headquarters. We wonder why Bainimarama and the FFP Opposition (if there is an Opposition) are not creating a stink on Wise's appointment?
Pita Wise says if Bainimarama accepts Rabuka’s offer for a quarters for the Leader of the Opposition, they will then amend the necessary legislation.
Only in Fiji, KAILA
Prime Minister, Sitiveni Rabuka has given time to former Prime Minister, Voreqe Bainimarama to stay at the official PM’s residence until he is ready to vacate the house in Muanikau.
Permanent Secretary at the Prime Minister’s Office, Pita Wise says the Prime Minister has given Bainimarama time to organise himself and there is no hurry.
Wise confirms that they will make the necessary amendments to the regulations and ensure that Bainimarama is given a government quarters if he wants to take up Rabuka’s offer and move to one as the Leader of the Opposition.
Rabuka continues to stay at his private residence at Namadi Heights after being sworn-in as Prime Minister on December 24th.
Wise also says they will make assessments after Bainimarama vacates the current official residence as it used to be the official residence of the Chief Justice.
The Public Service Commission and Public Works Department will also carry out an assessment of the official PM’s residence at Ratu Sukuna Road.
Wise says the cost to repair that official residence will be determined and they will then see what is best for the Prime Minister. Source: Fijivillage News
Permanent Secretary at the Prime Minister’s Office, Pita Wise says the Prime Minister has given Bainimarama time to organise himself and there is no hurry.
Wise confirms that they will make the necessary amendments to the regulations and ensure that Bainimarama is given a government quarters if he wants to take up Rabuka’s offer and move to one as the Leader of the Opposition.
Rabuka continues to stay at his private residence at Namadi Heights after being sworn-in as Prime Minister on December 24th.
Wise also says they will make assessments after Bainimarama vacates the current official residence as it used to be the official residence of the Chief Justice.
The Public Service Commission and Public Works Department will also carry out an assessment of the official PM’s residence at Ratu Sukuna Road.
Wise says the cost to repair that official residence will be determined and they will then see what is best for the Prime Minister. Source: Fijivillage News
Fijileaks: Why FREE ACCOMMODATION to the Leader of the Opposition?
*What if Opposition leader BAINIMARAMA, who has multiple heart surgeries and heart monitors, DROPS DEAD during the lifetime of Parliament, will the Bainimarama family be evicted from the Government Quarters that Rabuka is planning to provide to Bainimarama family?
*Rabuka's plan is an abuse of TAXPAYERS money and a betrayal of the 80,000plus voters who voted for him, and the NFP and SODELPA voters, who welcomed the Coalition government, and want the new government to launch a criminal investigation into the Bainimarama family's REAL WEALTH, and if found guilty, for Bainimarama to be convicted and sent to prison.
*As one Fijian taxpayer told Fijileaks: 'It is public funds. We should not be paying for accommodation of a criminal and dictator of 16 years.'
*The Opposition is only entitled to what is in Aiyaz Khaiyum's 2013 Constitution.
*It is not for the BLOODY Coup Godfather Rabuka, hiding behind the wall of IMMUNITY, to decide that Bainimarama, as Leader of Oppostion, should be provided a Government Quarters unlike previous holders of that Office.
*We understand that MARY Bainimarama does not want to move out from the Prime Minister's residence.
*The FFP have 26 members in Parliament out of 55. They should only get their share as stipulated in the Constitution. The cost of accommodation must come out from Opposition's total entitlement
*Will PAP nominated SPEAKER resign if his political leader Rabuka offers free accommodation to the Leader of the Opposition?
*Rabuka's offer is an ABUSE OF OFFICE and he should be charged, for he had not mentioned the proposed proposal in PAP Manifesto.
Will Rabuka's WATERBOY, the NFP leader, Deputy Prime Minister and Minister of Finance PRASAD have the GUTS to stand up in Parliament and OPPOSE Government accommodation for Bainimarama.
From Fijileaks Archive, 11 October 2020
"The utter devastation to Mrs. Ana Whippy’s family and her grieving loss were simply described by her victim impact statement. Mr. Kean your assault took away the father of an eight-year old girl and six-year old boy. Your assault also took away a husband. It has left his widow heartbroken, restless and distressed by the worry of her future prospects.They are, however, not the only victims. Your assault undoubtedly also took away the happiest day in any young couple’s life. Their marriage will forever be remembered by these sad, tragic events."
Justice Gerard Winter, 2007
"On Saturday the 30th of December, 2006 Mr. Samuel Whippy married Ms. Ateca Bainimarama at the Sacred Heart Cathedral in Suva. The wedding reception was held at the Royal Suva Yacht Club. John Whippy a relative of the groom attended the reception. Francis Bulewa Kean, Commander of the Fiji Naval Forces and uncle to the bride joined the celebration. During the course of the evening several fights broke out between guests. The deceased was involved in some of those fights. He was drunk. At about 2.00am John Whippy left the Yacht Club with Peter and Samuel Whippy. They talked. The groom bade them farewell. Peter went to get a taxi to take both him and John home. When the taxi pulled up Peter sat in the back seat and he told John Whippy to get into the car. As John Whippy was assisted to the taxi he was in an ugly drunken mood. I accept he used vulgar language that provoked Mr. Kean into firmly telling him to mind his language and go home. In his drunkenness the deceased ignored this direction and kept up his belligerent tirade. Francis Kean then left the Suva Yacht Club and ran towards Mr. John Whippy yelling in Fijian, "Stop that taxi." The accused then came up to John Whippy and punched him three times in the face. John Whippy first hit his head against the taxi light then fell heavily to the ground on his back. While he was lying on the ground Francis Kean kicked him on the chest. The accused was dragged away by an unidentified woman but returned to kick John Whippy’s head. Asaeli Duvusole intervened and grabbed the accused warning him to do no more harm. John Whippy lay unmoving by the side of the taxi. A Corporal of the Fiji Military Forces checked his pulse he could find none. John Whippy was lifted into the taxi and quickly taken to the Colonial War Memorial Hospital. Doctor Ashika Lata Sen saw John at 1.46am. He did not have either a pulse or cardiac rhythm and he was not breathing. Despite her best efforts to resuscitate him John Whippy did not revive. He was pronounced dead at 2.20am on 31st December 2006. Mr. Kean, John Whippy’s life was precious and its value should not be underestimated. There must be exceptional circumstances before the court can suspend a term of imprisonment. I have searched for those circumstances in your case but can find none. An immediate prison sentence must be imposed. You are sentenced to
eighteen (18) months in jail."
Gerard Winter
JUDGE
At Suva
Friday 26th October, 2007
*In Dayals Steel Pte Ltd case, residents are complaining that they can't sleep in the night. The black smoke is causing unreasonable interference with the comfortable enjoyment of life and property. |
We wonder if there was an appeal process against the Environment Department decision. Jay Dayal: 'I did request the PM's Office to intervene as we felt we were treated unfairly, the PN was too harsh for a very small number of non-compliances especially when there was absolutely no evidence of any material or physical damage to our environment.'
*But residents are complaining that they can't sleep in the night. The black smoke is causing unreasonable interference with the comfortable enjoyment of life and property.
The DAYALS with Rabuka's Deputy Prime Minister and Finance Minister.
HANG ON, I WILL ASK RABUKA TO LIFT STOP WORK ORDER AT LAUCALA ISLAND AIRPORT: CABINET MINISTER MANOA KAMIKAMICA.
He hasn't REVEALED to us why work was stopped by FFP government
*The Minister says when they got into office, they got a call from Laucala, where they were issued with a stop order from September, with absolutely no explanation on why the stop order was issued. He says thanks to Prime Minister Sitiveni Rabuka and Deputy Prime Minister and Minister for Tourism and Civil Aviation Viliame Gavoka, they released a stop order on Monday, and now Laucala is back to constructing a hanger that is worth about $30 million, and they have already spent $9 million
Deputy Prime Minister and Minister for External Trade, Cooperatives and SMEs, Manoa Kamikamica, say they have removed the stop order for the construction of a $30 million hangar for Laucala Island on Monday as it was causing concern to investors.
Kamikamica highlighted this while delivering his address during the Fijian Competition and Consumer Commission's Knowledge Economy Lecture PART 2 - New Approaches to Economic Progress Panel discussion at the Grand Pacific Hotel. He says he has noticed that there are still several bottlenecks where investors face multiple bottlenecks that discourage new investments and re-investment activities in Fiji.
He adds that this is hindering major investment projects, and there is a need to harmonise and streamline processes to remove bottlenecks. The Minister says when they got into office, they got a call from Laucala, where they were issued with a stop order from September, with absolutely no explanation on why the stop order was issued.
He says thanks to Prime Minister Sitiveni Rabuka and Deputy Prime Minister and Minister for Tourism and Civil Aviation Viliame Gavoka, they released a stop order on Monday, and now Laucala is back to constructing a hanger that is worth about $30 million, and they have already spent $9 million. Fijivillage.
Kamikamica highlighted this while delivering his address during the Fijian Competition and Consumer Commission's Knowledge Economy Lecture PART 2 - New Approaches to Economic Progress Panel discussion at the Grand Pacific Hotel. He says he has noticed that there are still several bottlenecks where investors face multiple bottlenecks that discourage new investments and re-investment activities in Fiji.
He adds that this is hindering major investment projects, and there is a need to harmonise and streamline processes to remove bottlenecks. The Minister says when they got into office, they got a call from Laucala, where they were issued with a stop order from September, with absolutely no explanation on why the stop order was issued.
He says thanks to Prime Minister Sitiveni Rabuka and Deputy Prime Minister and Minister for Tourism and Civil Aviation Viliame Gavoka, they released a stop order on Monday, and now Laucala is back to constructing a hanger that is worth about $30 million, and they have already spent $9 million. Fijivillage.
From Fijileaks Archive, 15 April 2021
In 2001, the democracy activist JONE DAKUVULA had claimed that Rabuka's cousin and the then General Manager of NLTB, MAIKA QARIKAU, owned a 2,000 acre property - Yalave Estate in the same area as Rabuka. Dakuvula wrote: "One of the advantages of working for the NLTB is that you have the information first hand and can make choices like this...I wondered how Rabuka was managing in his loan repayments to his Bankers."
“I have never seen that Chinese, the agent that brought him in said he was a livestock breeder in Brisbane, so I thought he was an Australian.”
In July 2018 he revealed that he had sold his 2000 acre plus Valavala Estate. The revelation had come in the wake of an interview with 60 Minutes television programme, which reported that Rabuka was angered by the growing Chinese influence in Fiji. In 1987, he was happy to welcome Chinese farmers and businessmen into Fiji to replace the Indo-Fijians. They were to come from mainland China and Hong Kong. 'The Chinese would be the best substitute. They are hard workers and have no political ambitions,' he said. What about the Indo-Fijians? 'As far as I am concerned Indians (Indo-Fijians) are welcome to stay and make as much money as they like.' Now, when the 'Indians' have made their money and have donated millions to FFP, he has run to FICAC
Like the way Sitiveni Rabuka was hiding himself under the snooker table when the 3rd FIR Battallion stormed the Officers’ Mess during the November mutiny in 2000. The Battalion Commander, Colonel Seruvakula, while the current Commander Ratu Jone Kalouniwai was held hostage and blood was flowing through the barracks, marched right onto the spot where Rabuka was hiding under the table, saluted and shouted “Sir, come out from there now, go into your vehicle and drive straight out of the camp". As he surfaced, Col Seruvakula again saluted and motioned him to his vehicle parked outside with his old Commander’s uniform still hanging from the rear seat window.
*During the recent general election, Rabuka wanted Commander Kalouniwai to exercise his powers under Section 131 (2) of the 2013 Constitution and stop the counting of votes, claiming serious irregularities in the counting process that had put the legitimacy of the polls in doubt.
Sitiveni Rabuka was backed by other political leaders.
Army Commander, Major General Jone Kalouniwai says the Republic of Fiji Military Forces is raising its concerns with regards to the sweeping changes of the current government to establish a firm transition of power and democratic control as the government of the day.
Major General Kalouniwai says the RFMF has quietly observed with growing concern over the last few days, the ambition and speed of the government in implementing these sweeping changes are creating shortcuts that circumvent the relevant processes and procedures that protect the integrity of the law and the Constitution.
The Army Commander says whilst the RFMF recognizes the justifications by the current government to establish these changes, the RFMF believes that trying and failing to democratize in adverse circumstances has the potential to bring about fateful, long-term national security consequences.
He says the RFMF is concerned, whether these rapid changes are being pursued without a full understanding of the process and procedures or intentionally done to challenge the integrity of the Law and the Constitution of this land.
Major General Kalouniwai says whatever the reasons may be, the RFMF feels that such actions and decisions is putting at risk the very nature of the Law and the separation of powers that clearly demarcate the independence of the three arms of government.
He says given that Fiji is a very new democracy and given our unfortunate past experience of governments exceeding or attempting to exceed its powers, section 131 of the Constitution ensures that the RFMF plays a guardian role where the excesses of the past are not repeated and any new assaults on our emerging democracy are not tolerated.
The Commander says this provision is also in place to ensure that the values and principles of democracy including the checks and balances enshrined in the Constitution are not undermined.
The RFMF firmly believes that the separation of powers between the executive and the judicial arms of the state must be respected.
He says it must be important to understand and appreciate that a strong rule of law is built on respect for and adherence to a clear separation of powers between the executive, the legislature and the judiciary. Source: Fijivllage
Major General Kalouniwai says the RFMF has quietly observed with growing concern over the last few days, the ambition and speed of the government in implementing these sweeping changes are creating shortcuts that circumvent the relevant processes and procedures that protect the integrity of the law and the Constitution.
The Army Commander says whilst the RFMF recognizes the justifications by the current government to establish these changes, the RFMF believes that trying and failing to democratize in adverse circumstances has the potential to bring about fateful, long-term national security consequences.
He says the RFMF is concerned, whether these rapid changes are being pursued without a full understanding of the process and procedures or intentionally done to challenge the integrity of the Law and the Constitution of this land.
Major General Kalouniwai says whatever the reasons may be, the RFMF feels that such actions and decisions is putting at risk the very nature of the Law and the separation of powers that clearly demarcate the independence of the three arms of government.
He says given that Fiji is a very new democracy and given our unfortunate past experience of governments exceeding or attempting to exceed its powers, section 131 of the Constitution ensures that the RFMF plays a guardian role where the excesses of the past are not repeated and any new assaults on our emerging democracy are not tolerated.
The Commander says this provision is also in place to ensure that the values and principles of democracy including the checks and balances enshrined in the Constitution are not undermined.
The RFMF firmly believes that the separation of powers between the executive and the judicial arms of the state must be respected.
He says it must be important to understand and appreciate that a strong rule of law is built on respect for and adherence to a clear separation of powers between the executive, the legislature and the judiciary. Source: Fijivllage
GET OUT OF 2006. Fijileaks to Pio Tikoduadua. White-washing the 1987 coups started by your BOOT BOY Sitiveni Rabuka is the root of all COUPs in Fiji. Its rank hypocrisy to lecture Commander Kalouniwai, for Rabuka is still hiding behind the IMMUNITY he obtained by the GUN.
The Coalition is hell-bent on changing the 2013 Constitution and REMOVE the role of the MILITARY in that Constitution but it must follow the process as stipulated in the Constitution.
From Fijileaks Archive, 12 January 2023
From Fijileaks Archive, 14 February 2022
STARTING SHOT: Rabuka and his PROXIES (Tikoduadua) must read between the lines Commander Jone Kalouniwai's statement.
Fiji has a history of COUPS, started by SITIVENI RABUKA
Founder of the journalist fellowship programme has died The founder of the fellowship programme which has brought hundreds of journalists from around the world to the University of Oxford has died at the age of 93. Neville Maxwell oversaw the programme for its first 10 years, initially awarding two fellowships to journalists in 1983 through the Institute of Commonwealth Studies. Fijileaks: Our Founding Editor-in-Chief and former Senior Sub-Editor cum Investigative Reporter on the original Fiji Sun was one of the two first journalists from throughout the Third World to be selected for the prestigious Reuters News Agency study scholarship to Oxford. His book, in which he foresaw the 1987 coups, was with the publishers, waiting to be released when Rabuka seized power on 14 May 1987. The book had to be re-written with additional chapters and re-titled Fiji: Coups in Paradise. Race, Politics and Military Intervention. The book was written under the academic supervision of Dr (later Sir) David Butler at Nuffield College, Oxford. Sir David, who died in Oxford last October at the age of 98, was the principal adviser to the late Ratu Sir Kamisese Mara, the Allaince Party, and on the drafting of the 1970 Constitution of Fiji that Rabuka abrogated in 1970 to fulfil the aims of his two racially motivated coups in 1987. | Neville Maxwell, was author of the well-researched and widely read book, India’s China War, 1970. He had an academically fulfilling career. In 1971, his controversial book played a key role in bringing about a historic meeting between US President Richard Nixon and China’s Chairman Mao. In 1959, Maxwell was posted to New Delhi as the South Asia correspondent. In the next eight years, he traveled from Kabul to East Pakistan and Kathmandu to Ceylon, reporting on the end of the Nehru era in India and the post-Nehru developments. During the 1962 Sino-Indian War, Maxwell wrote for The Times from New Delhi and was the only reporter there who did not uncritically accept the official Indian account of events. This eventually led to his "virtual expulsion" from India.[ |
'I felt that the 1970 Constitution was right and I had consulted a constitutional expert, David Butler by name, and his opinion was that the Constitution is right and [if] the Fijians stay united, we should still have power for a long time.'
Ratu Sir Kamisese Mara on the abrogation of the 1970 Constitution shortly after the Rabuka coups.
50 YEARS AGO, Fijileaks Editor: "One of these days I will reveal all the correspondence made available to me between the late President Ratu Sir Kamisese Mara and my former academic supervisor at Oxford, Sir David Butler, on race, ethnicity, chiefs, party politics, and constitutionalism in Fiji."
Sir David Butler, pioneering election analyst, dies aged 98
And he developed a theory: that the number of seats a party won in a general election was proportional to the cube of the votes it received. It wasn't exactly a page turner, but he got the Economist to publish it. Out of the blue, he was summoned by Churchill. Butler hastened to Chartwell - where the great man emerged, glowing pink from his bath.
Sir Winston had read the article - but swiftly tired of discussing its complexities. Instead, he delivered a long, private masterclass on the art of wartime leadership. "You're 25? You'd better hurry up, young man," he told an awed Butler. "Napoleon was 26 when he crossed the bridge at Lodi." See Obituary below:
Sir David Butler, pioneering election analyst, dies aged 98 - BBC News
We assert that no such acting appointment can be made even on a temporary basis. His appointment is unprecedented. The only other legitimate way he could be appointed is by way of an 'Adviser or Consultant' but not as Permanent Secretary by Sitiveni Rabuka.
In Chand's case, he is disqualified from being considered as an applicant for a permanent appointment in the public service (and especially as a Permanent Secretary of the Public Service) for anyone who is a failed candidate in any national elections. |
GO BACK TO YOUR LECTURE NOTES, PARMESH CHAND:
We are shocked that after he resigned from the PSC, he learnt nothing as the Director of Pacific Islands Centre for Public Administration. He is also credited as having led the design and change management of a number of major public sector reform programs.
July 2008:“He came to see me this morning and tendered his resignation which is being considered..He did not give any reason for his resignation which has been handed to the permanent secretary for processing," said PSC permanent secretary Taina Tagicakibau "At the moment we’ll be looking at the appointment of someone from within (the interim PM’s office) to act in his (Mr Chand’s) place,” said PSC Rishi Ram. |
Fijileaks: Like 15 years ago, the recent Acting appointment of Chand should have come from within the Ministry.
*In other words, there should have been an advertisement and consideration and approval by the PSC then police clearance before final endorsement by Sitiveni Rabuka.
*Here they are obviously trying to push the cart before the horse which is unprecedented. *Why don’t they simply maintain Susan Kiran to continue to act as Secretary PSC and Secretary to Cabinet (for next 30 days or so or assign another incumbent PS from another Ministry to act at PSC) until due process has been completed in the case of Chand's application?
*In Chand's case, he is disqualified from being considered as an applicant for a permanent appointment in the public service (and especially as a Permanent Secretary of the Public Service) for anyone who is a failed candidate in any national elections.
That is why it is mandatory for all civil servants to resign from the civil service if or should they offer themselves as candidates for national elections either standing for a political party or as an independent. This is based on the principle that civil servants must be politically neutral and independent at all times.
SILENT AS A LAMB (CHOP) |
*But the long standing tradition of the public service from colonial days to post independence to be politically neutral and independent at all times, was grossly abused and incinerated by the FFP government when it approved FFP’s failed 2014 election candidate, Commander Viliame Naupoto, to be appointed as Commander of the RFMF for two terms during which time he had, with PM Bainimarama’s aggressive connivance, totally destroyed the political neutrality and independence of our Royal Fiji Military Forces.
*It is therefore quite obvious that the Prime Minister Rabuka of the new Coalition Government, faced perhaps by relentless public pressure to achieve his Government’s ambitious 100-Day Plan, has decided to borrow from FFG’s infamous doctrine of appointing one of his failed national election candidate to the highest Permanent Secretary appointment in the nation.
*This has never been done by previous Governments since independence.
HEIL TO SITIVENI RABUKA AND THE COALITION GOVERNMENT
Fijileaks: Is the FFP general secretary Aiyaz Khaiyum now
'ordinarily resident' in Australia?
Kumar was very quick to rule against Waqavonovono from contesting the 2014 election but when it came to the legal challenge from 7 women for constitutional redress so they and over 100,000 other women could vote in the 2022 election, he sat on the judgment until the election was over
From Fijileaks Archive, 1 August 2014;
Re Makereta Waqavonovono v Electoral Commission
and the Supervisor of Elections.
Fijileaks: It was perfectly acceptable for Khaiyum to undergo 'enema' at the Suva Private Hospital to relieve him from a week-long constipation but his courts must remain 'judicially constipated' until general election
Just see how the Chief Justice Anthony Gates colludes with regime to change decree at the eleventh hour to bar Waqavonovono from poll:
KARMA IS A BITCH: And guess who was behind the drafting of the Decree, and the lawyer who argued before Kamal Kumar to prevent Waqavonovono from contesting the election - YES, Sharvada SHARMA.
This man drafted most of the highly oppressive decrees for Khaiyum. It is ridiculous to defend him by arguing that he was simply doing his job. No, he had the choice to resign and walk away. We were told recently that Munro Leys were planning to HIRE him after he got the boot as Solicitor-General after Kamal Kumar snitched him to Bainimarama and Khaiyum.
Kamal Kumar's judgment against Makereta Waqavonovono:
IN THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION
Civil Action No. HBM 92 of 2014
IN THE MATTER of the Constitution of the Republic of Fiji
AND
IN THE MATTER Section 23, 26 & 56 of the Constitution of the Republic of Fiji.
AND
IN THE MATTER of Section 23 of the Electoral Decree 2014
AND
AND THE HIGH COURT (Constitutional Redress) Rules 1998
BETWEEN:
MAKERETA WAQAVONOVONO
Plaintiff
AND:
CHAIRPERSON OF FIJIAN ELECTORAL COMMISSION
First Defendant
AND:
SUPERVISOR OF ELECTIONS
Second Defendant
AND:
ATTORNEY GENERAL OF FIJI & MINISTER FOR ELECTIONS
Third Defendant
BEFORE: Hon. Justice Kamal Kumar
COUNSEL: Plaintiff in Person
Mr. S. N. Sharma and Mr. N. Chand for the 2nd and 3rd Defendants
DATE OF HEARING: 28 July 2014
DATE OF RULING: 1 August 2014
RULING
1.0 Introduction
1.1 On 11 July 2014 the Plaintiff filed Notice of Originating Motion pursuant to Section 44 of the Constitution of the Republic of the Fiji Islands (2013) upon grounds contained in Plaintiff's Affidavit sworn on 10 July 2014 seeking following relief:
1. A declaration that the definition of 'ordinarily resident in Fiji' and 'a person that has been out of Fiji for official Government business or duties' provided in section 23(5) of the Electoral Decree 2014 is invalid because it unlawfully discriminates against the political rights of citizens and infringes on their right to a fair and free election because it restricts their options and they will not be able to vote for the candidate of their choice under section 23 (2) of the Constitution.
2. A declaration that the definition of 'ordinary resident in Fiji' and 'a person that has been out of Fiji of official Government business or duties' provided under section 23(5) of the Electoral Decree 2014 is invalid because it unlawfully discriminates against the Plaintiff and infringes on her political right to be a candidate for the public office guaranteed by section 23 (3) (c) of the Constitution.
3. A declaration that the definition of 'ordinary resident in Fiji' and 'a person that has been out of Fiji for official Government business or duties' under section 23 (5) of the Electoral Decree 2014 is invalid because it unlawfully discriminates against the Plaintiff and infringes on her right to equality before the law and right to equal protection, treatment and benefit of the law under section 26 of the Constitution.
4. An injunction restraining the First Defendant and the Third Defendant, whether by themselves, their subordinate officers, servants or agents or otherwise howsoever, from interfering with the Plaintiff's right to be a candidate in the 2014 General Elections in the Republic of the Fiji Island.
5. An order that the Defendants pay the Plaintiff's costs on full indemnity basis.
6. Such further or other relief as shall be just."
1.2 Notice of Motion was listed to be called on 22 July 2014, when Plaintiff was represented by her Counsel and Second and Third Defendants were represented by their Counsel.
1.3 On 22 July 2014 Counsel for Second and Third Defendants raised the issues that this Court does not have jurisdiction in respect to matters raised in the Notice of Originating Motion and also that this Court cannot usurp the powers of the Electoral Commission and nor can it grant injunction against the State.
1.4 Leading Counsel for the Plaintiff sought an early hearing date as a matter of urgency.
1.5 This Court in view of the nature of the subject matter gave following directions:
(i) Defendants are at liberty to file and serve Affidavit in Opposition to the Notice of Originating Motion by 24 July 2014.
(ii) Second and Third Defendants to file and serve Application to strike out Action by 23 July 2014.
(iii) Plaintiff is at liberty to file and serve Affidavit in Reply by 25 July 2014.
(iv) Hearing on preliminary issue on Jurisdiction, Striking Out Application and Notice of Originating Motion dated 10 July 2014 be adjourned to 28 July 2014 at 10.00am.
1.6 Parties were also directed to file their submissions on date of hearing.
1.7 On 24 July 2014, Second and Third Defendants filed and served Summon to Strike Out Notice of Originating Motion and Affidavit in Response to Plaintiff's Affidavit in Support.
1.8 On 25 July 2014, Plaintiff attempted to file Amended Notice of Originating Motion and Supplementary Affidavit when I directed the Registry to inform the Plaintiff that she will need to obtain leave of this Court prior to filing of such documents.
1.9 On 28 July 2014, Plaintiff by her Counsel made Oral Application to Amend Notice of Originating Motion and handed in a copy of the Amended Notice of Originating Motion dated 25 July 2014.
1.10 Proposed Amend Notice of Originating Motion seeks following relief:
"1. A declaration that on the proper meaning and application of the phrase 'ordinary resident' in section 23(4)(c) of the Electoral Decree 2014 includes Fiji citizens who are temporarily absent from Fiji for brief periods whether for non-government business or other activities;
2. A declaration that on the proper meaning and application of the phrase 'ordinary resident' in section 56 (2) (c) of the Constitution includes Fiji citizens who are temporarily absent from Fiji for brief periods whether for non-government business or other activities;
3. A declaration that the phrase 'on government business or duties' in section 23(5) of the Electoral Decree 2014 as applied to those prospective candidates deemed to be ordinarily resident in Fiji unlawfully discriminates against those individuals who are temporarily absent from Fiji on non-government business or other activities and therefore infringes on the Plaintiff's constitutional and political right to be a candidate for public office as guaranteed by section 23 of the Constitution;
4. A declaration that the phrase 'on government business or duties' in section 23 (5) of the Electoral Decree 2014 as applied to those prospective candidates deemed to be ordinarily resident in Fiji unlawfully discriminates against those individuals who are temporarily absent from Fiji on business or other activities and therefore unlawfully discriminates against the Plaintiff on grounds of her personal circumstances and infringes on her right to equality before the law and right to equal protection treatment and benefit of the law under section 26 of the Constitution;
5. A declaration that the Plaintiff is entitled (or qualified) to be a candidate in the general elections scheduled for 17 September 2014 under the provisions of section 23 of the Electoral Decree 2014 and section 56 of the Constitution."
1.11 Application to amend Notice of Originating Motion was opposed by the Second and Third Defendants.
1.12 At the close of submissions Plaintiff's Counsel informed the Court that Plaintiff does not challenge the Constitutional validity of the provisions of the Electoral Decree 2014 (Decree No. 11 of 2014) but wants the Court to define the term "Ordinary Resident in Fiji for at least 2 years immediately before being nominated" in Section 23 (4) (c) of the Electoral Decree 2014.
2.0 Background Facts
2.1 Electoral Decree 2014 (Decree No 11 of 2014) commenced on 28 March 2014, being date of publication in the Government of Fiji Gazette.
2.2 Section 23 of the Electoral Decree provides as follows:
"23 - (1) A person is not eligible to be elected as a member of Parliament unless duly nominated as a candidate in the election.
(2) A candidate for election to Parliament may be nominated by a registered political party or nominated as an independent candidate in accordance with the procedures prescribed in this Decree.
(3) A person is not eligible to be nominated as a candidate unless he or she is a registered voter, and a person who has been disqualified from voting by an order of a court under section 151 shall for this purpose be regarded as not registered to vote.
(4) A person is eligible to be nominated as a candidate for election to Parliament only if person -
(a) is a citizen of Fiji, and does not hold citizenship of any other country;
(b) is registered in the Register of Voters;
(c) is ordinarily resident in Fiji for at least 2 years immediately before being nominated;
(d) is not an undischarged bankrupt;
(e) is not a member of the Electoral Commission, and has not been a member of that Commission at any time during the 4 years immediately before being nominated.
(f) is not subject to a sentence of imprisonment when nominated.
(g) has not, at any time during the 8 years immediately before being nominated, been convicted of any offence under any law for which the maximum penalty is a term of imprisonment of 12 months or more; and
(h) has not been guilty of any offence under a law relating to elections, registration of political parties or registration of voters, including any offence prescribed under this Decree.
(5) For the purposes of subsection (4) (c), a person is deemed to be ordinarily resident in Fiji if that person has been out of Fiji for official Government business or duties or has been holding an official Government position in any other country." (emphasis added).
2.3 On 14 May 2014 National Federation Party wrote to the Chairman of Electoral Commission seeking an "interpretation from the Commission on the definition of "Ordinarily Resident" for the purposes of candidacy for the 2014 General Elections."
2.4 On 19 May 2014 Electoral Commission responded to aforesaid letter advising that "it is not for the Commission to give legal opinion to political parties or to interpret - statutory words on hypothetical basis.
2.5 On 9 June 2014, Plaintiff wrote to the Chairperson of Electoral Commission raising her concern regarding Section 23 (4) (c) of the Electoral Decree 2014.
2.6 On 11 June 2014 the Electoral Commission wrote to the Plaintiff advising her that her letter has been referred to Solicitor General and Supervisor of Elections.
2.7 On 23 June 2014 Plaintiff wrote to the Chairperson stating that she has not heard from Solicitor General's Office, raising her concern as to why letter was sent to Solicitor General and advising of her intention to take the matter further.
3.0 Application to Amend Notice of Originating Motion
3.1 Leading Counsel for the Second and Third Defendants submitted that this Court cannot allow Amendment of the Notice of Originating Motion prior to determining the jurisdiction.
3.2 In Ex-parte McCardle 74 U.S (7 walls) 506 (1868) the Chief Justice of Supreme Court of United States stated as follows:
"Without jurisdiction the Court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause. And this is not less clear upon authority than upon principle."
In Ex-parte McCardle the congress enacted an Act granting several Court of the United States power to grant to writ of habeas corpus in all cases where persons liberty is restrained in violation of the Constitution. Final decision of any Court inferior to Circuit Court, may be appealed to Circuit Court of the United States of the District and from Judgment of the Circuit Court to the Supreme Court of the United States.
Petitioner was held by military for trial before a military commission who caused writ of habeas corpus to be issued and upon hearing the petitioner, he was held in military custody. Petitioner appealed to Supreme Court and whilst the appeal was pending congress amended the above Act to remove the right to appeal to Supreme Court. Supreme Court of United State dismissed the appeal for want of jurisdiction.
3.3 It is well established that if the Court does not have jurisdiction to grant relief sought then the matter ends at that point.
3.4 In Padarath & Anor v. His Excellency the President of Fiji & Ors [2013] FJHC 116; HBC 33 of 2013 (14 March 2013) her Ladyship Justice Wati stated as follows:
"Whether the Court has powers to consider any proposed application for leave to amend the originating summons or give directions to the registry to accept the amended originating summons the Court must first establish that it has jurisdiction on the existing substantive cause. If the Court does not have any jurisdiction to hear the substantive cause, it cannot hear any oral or formal application for leave to amend. Hearing the application for leave to amend or giving directions for filing of amended process will tantamount to exercising of jurisdiction. It was therefore prudent that the preliminary issues on jurisdiction be heard and determined."
3.5 In Padarath's case the Plaintiff sought an injunction against Registrar of Political Parties from de-registering Fiji Labour Party under the Political Parties (Registration, Conduct and Disclosure Decree 2013). At the date of hearing of the Application for injunction Counsel for the Plaintiffs informed the Court that Plaintiffs intend to amend their Application and that Application to Amend has been filed in Court Registry.
At that point in time Counsel for the Defendants raised the issue that Court has to first decide the preliminary issue of jurisdiction and if Court holds that, it does not have jurisdiction to grant relief in the Original Application then it cannot allow the Amendment.
3.6 It is therefore imperative that this Court will first need to determine as to whether it has jurisdiction to grant relief sought in Notice of Originating Motion dated 10 July 2014, and if this Court finds that it does not have jurisdiction to grant relief sought in the said Notice of Originating Motion then it cannot deal with Amendment Application.
4.0 Jurisdiction
4.1 Leading Counsel for the Second and Third Defendant's submitted that pursuant to Section 173(4) of 2013 Constitution and Sections 5(3), (4), (5), (6) and (7) of the Administration of Justice Decree 2009 this Court does not have jurisdiction to deal with the unconstitutionality and unlawfulness of the provisions of the Electoral Decree 2014.
4.2 Section 173 of the 2013 Constitution provides as follows:
"(4) Notwithstanding anything contained in this Constitution, no court or tribunal (including any court or tribunal established or continued in existence by the Constitution) shall have the jurisdiction to accept, hear, determine, or in any other way entertain, or to grant any order, relief or remedy, in any proceedings of any nature whatsoever which seeks or purports to challenge or question:
(a) the validity or legality of any Promulgation, Decree or Declaration, and any subordinate laws made under any such Promulgation, Decree or Declaration (including any provision of any such laws), made or as may be made between 5 December 2006 until the first sitting of the first Parliament under this Constitution;
(b) the constitutionality of any Promulgation, Decree or Declaration, and any subordinate laws made under any such Promulgation, Decree or Declaration (including any provision of any such laws), made or as may be made between 5 December 2006 until the first sitting of the first Parliament under the Constitution;
(c ) any Promulgation, Decree or Declaration, and any subordinate laws made under any such Promulgation, Decree or Declaration (including any provision of any such laws), made or as may be made between 5 December 2006 until the first sitting of the first Parliament under this Constitution, for being inconsistent with any provision of this Constitution, including any provision of Chapter 2 of this Constitution; or
(d) any decision made or authorised, or any action taken, or any decision which may be made or authorised, or any action which may be taken, under any Promulgation, Decree or Declaration, and any subordinate laws made under any such Promulgation, Decree or Declaration (including any provision of any such laws), made or as any be made between 5 December 2006 until the first sitting of the first Parliament under this Constitution, except as may be provided in or authorised by any such Promulgation, Decree or Declaration (including any provision of any provision of any such laws), made or as may be made between 5 December 2006 until the first sitting of the first Parliament under this Constitution.
(5) Notwithstanding anything contained in this Constitution, despite the repeal of the Administration of Justice Decree 2009, subsections (3), (4), (5), (6) and (7) of Section 5 of the Administration of Justice Decree 2009 shall continue to apply to any Promulgation, Decree or Declaration (including any provision of any such laws), made or as may be made between 5 December 2006 until the first sitting of the first Parliament under this Constitution."
4.3 Section 5(3) to (7) of Administration of Justice Decree 2009 provides:
"5(3) Notwithstanding anything contained in this Decree or any other law, no court shall have the jurisdiction to accept, hear and determine any challenges whatsoever (including any application for judicial review) by any person to the Fiji Constitution Amendment Act 1997 Revocation Decree 2009 (Decree No. 1) and such other Decrees made or as may be made by the President.
(4) Notwithstanding anything contained in this Decree or any other law, no Court shall have the jurisdiction to accept, hear and determine, or in any other way entertain, any challenges whatsoever (including any application for judicial review) by any person to the validity or legality of any Decrees made by the President from 10 Aril 2009 and any Decrees as may be made by the President.
(5) Any proceedings of any form whatsoever, as well as any application of any form whatsoever in a proceeding, seeking to challenge the validity or legality of the Fiji Constitution Amendment Act 1997 Revocation Decree 2009 (Decree No. 1) or any other Decrees made by the President from 10 April 2009 or as may be by the President, shall wholly terminate immediately upon the commencement of this Decree, and a Certificate to that effect shall be is issued by the Chief Registrar to all parties to the proceedings.
(6) Where any proceeding of any form whatsoever, as well as any application of any form whatsoever in a proceeding, seeking to challenge the validity or legality of the Fiji Constitution Amendment Act 1997 Revocation Decree 2009 (Decree No. 1) or any other Decrees made by the President from 10 April 2009 or as may be made by the President, is brought or made before a judicial officer or a Tribunal, then the judicial officer or the Tribunal, without hearing or in any way determining the proceeding or the application as the case may be, shall immediately transfer the proceeding or the application to the Chief Registrar, for termination of the proceeding or the application and issuance of Certificate under subsection (5).
(7) In this section, 'judicial officer' includes Judge, Master of the High Court, Chief Magistrate and resident magistrate." (emphasis added)
4.4 Reliefs 1, 2 and 3 in the Notice of Originating Motion dated 10 July 2014 challenges the validity of provision of Section 23 (5) of the Electoral Decree 2014.
4.5 Provisions of Section 173 (4) of the Constitution and Section 5 (3) to (7) of Administration of Justice Decree ousts the Court jurisdiction to deal with any action challenging the validity of the provision of Electoral Decree. These provisions are drafted in very wide terms.
4.6 Relief 4 in Notice of Originating Motions seeks injunctions against the State and its officers which is specifically prohibited by Section 15(2) of Crown Proceedings Act which provides as follows:
"15(2) The Court shall not in any civil proceedings grant any injunction or make any order against an officer of the Crown if the effect of granting the injunction or making the order would be to give any relief against the Crown which could not have been obtained in proceedings against the Crown."
4.7 Fiji Court of Appeal in Bainimara v. Heffernan [2008] FJCA 78 Civil Appeal No. ABU0034 of 2007S stated as follows:-
"44. No Court will knowingly make an order beyond its power and any judge would need to be satisfied that he or she had the power before making an unusual or novel order.
45. However here there was no analysis by the trial judge of the submission by Dr. Cameron. The trial judge in his decision to grant the injunction did so knowing that it was only "arguable" that the Court had the power to do so and therefore that it was only "arguable" that the Court was not committing an illegal act.
46. This is a matter which ought to have tipped the balance beyond reason. At the very least the trial judge ought to have satisfied himself that it was more likely than not that the Act did not prevent him from ordering the injunction. He did not do this but took the risk in a case that could not justify such a risk, in a case where there seemed little urgency and where there was doubtful utility in granting the injunction.
47. In failing to properly take into account this highly relevant material consideration the trial judge made a serious error in the exercise of his discretion."
4.8 In any event this relief is a clear abuse of Court process in that there is not any frailest of evidence that the Defendants and/or its officers servants or agents or otherwise whosoever have in any way interfered with Plaintiff's right to seek nomination as a candidate.
4.9 At the close of submission on 28 July 2014, Plaintiff by her Counsel informed the Court that Plaintiff is not challenging the validity, lawfulness or Constitutionality of the Electoral Decree but moves the Court to define the phrase "Ordinary Resident" in Section 23(4)(c) of the Electoral Decree.
4.10 It must be noted that even though this court has unlimited original jurisdiction to hear and determine any civil or criminal proceeding under any law or matters arising under the Constitution or involving its interpretation as provided for in Section 100(3) and (4) of 2013 Constitution the jurisdiction to determine matters relating to election is special jurisdiction.
4.11 Jurisdiction/Power to determine the pre-election matters such as registration of voters, registration of political parties and nomination of candidate and so on are granted to Supervisor of Elections and Electoral Commission whereas jurisdiction to determine dispute post-election is granted to Court of Disputed Return which is the High Court of Fiji (Part 5 - Electoral Decree 2014).
4.12 In Prasad v. Singh [2002] FJHC 8:HBC 0 269 of 2011 (8 February 2002). His Lordship Justice Gates (as he then was) the current Chief Justice in dealing with post-election dispute stated as follows:
"It is clear the Court of Disputed Return exercise a special jurisdiction allowed by the Constitution and under the Electoral Act which legislation is in the nature of a code Osborne v, Shepherd [1981] 2 NSWLR 277 at p208G: Josefa Rusaqoli v. Attorney - General & Anor. (unreported) Suva High Court civil Action No. 0149 of 1994S; 6 June 1994 at p6."
4.13 No jurisdiction has been granted to this court in respect to pre-election matters.
4.14 The rationale for the special jurisdiction is that matters relating to pre-election issue and post-election issue must be determined expeditiously. (see Prasad v. Singh supra)
4.15 During the course of finalising this Ruling I was referred to Electoral (Amendment) (No. 2) Decree 2014 (Decree No. 26 of 2014) published in yesterday's Government of Fiji Gazette by Counsel for 2nd and 3rd Defendants which repealed subsection 5 of Section 23 of the Electoral Decree 2014 and substituted the following:-
"(5) For the purpose of subsection (4)(c), a person shall only qualify to be ordinarily resident in Fiji for at least 2 years immediately before being nominated, if that person has been present and living in Fiji for an aggregate period of not less than 18 months out of the 2 years immediately before being nominated."
Amendment Decree also inserted the following subsection after subsection (5):-
"(6) Notwithstanding anything contained in subsection (5), any person who has been out of Fiji for official Government business or duties or has been holding an official Government position in any other country, shall be deemed to be ordinarily resident in Fiji for the purposes of subsection (4)(c)."
4.16 Subsection 6 has the same effect as Subsection 5 in the Electoral Decree 2014 prior to the amendment and as such for all intent and purpose Plaintiff's Notice of Originating Motion is deemed to challenge subsection 6 of Section 23 of the Electoral Decree.
4.17 I hold that this Court does not have jurisdiction to deal with or grant the relief sought by the Plaintiff in the Notice of Originating Motion dated 10 July 2014.
4.18 It follows that this Court cannot therefore deal with Plaintiff's Oral Application to amend Notice of Originating Motion dated 10 July 2014.
4.19 If the Plaintiff and/or her legal advisors are of the view that this Court has jurisdiction to grant the relief in the Proposed Amended Notice of Motion then Plaintiff should seek such reliefs in a separate action and not by amending the motion in this proceedings.
5.0 Costs
5.1 Second and Third Defendants seeks costs on indemnity basis but has not made any submissions on to why indemnity costs should be awarded.
5.2 Even though the Plaintiff sought reliefs which could not be sustained or dealt with in light of the Section 173 of 2013 Constitution, Section 5 of Administration of Justice Decree 2009 and subsection 15(2) of the Crown Proceedings Act, I am inclined to award cost on party-party basis.
6.0 Conclusion
I make the following orders:
(i) Plaintiff's Notice of Motion dated 10 July 2014 and this action is dismissed and struck out for want of jurisdiction;
(ii) Plaintiff is to pay Second and Third Defendants costs jointly assessed in the sum of $3,000.00.
Kamal Kumar
JUDGE
At Suva
1 August, 2014
CIVIL JURISDICTION
Civil Action No. HBM 92 of 2014
IN THE MATTER of the Constitution of the Republic of Fiji
AND
IN THE MATTER Section 23, 26 & 56 of the Constitution of the Republic of Fiji.
AND
IN THE MATTER of Section 23 of the Electoral Decree 2014
AND
AND THE HIGH COURT (Constitutional Redress) Rules 1998
BETWEEN:
MAKERETA WAQAVONOVONO
Plaintiff
AND:
CHAIRPERSON OF FIJIAN ELECTORAL COMMISSION
First Defendant
AND:
SUPERVISOR OF ELECTIONS
Second Defendant
AND:
ATTORNEY GENERAL OF FIJI & MINISTER FOR ELECTIONS
Third Defendant
BEFORE: Hon. Justice Kamal Kumar
COUNSEL: Plaintiff in Person
Mr. S. N. Sharma and Mr. N. Chand for the 2nd and 3rd Defendants
DATE OF HEARING: 28 July 2014
DATE OF RULING: 1 August 2014
RULING
1.0 Introduction
1.1 On 11 July 2014 the Plaintiff filed Notice of Originating Motion pursuant to Section 44 of the Constitution of the Republic of the Fiji Islands (2013) upon grounds contained in Plaintiff's Affidavit sworn on 10 July 2014 seeking following relief:
1. A declaration that the definition of 'ordinarily resident in Fiji' and 'a person that has been out of Fiji for official Government business or duties' provided in section 23(5) of the Electoral Decree 2014 is invalid because it unlawfully discriminates against the political rights of citizens and infringes on their right to a fair and free election because it restricts their options and they will not be able to vote for the candidate of their choice under section 23 (2) of the Constitution.
2. A declaration that the definition of 'ordinary resident in Fiji' and 'a person that has been out of Fiji of official Government business or duties' provided under section 23(5) of the Electoral Decree 2014 is invalid because it unlawfully discriminates against the Plaintiff and infringes on her political right to be a candidate for the public office guaranteed by section 23 (3) (c) of the Constitution.
3. A declaration that the definition of 'ordinary resident in Fiji' and 'a person that has been out of Fiji for official Government business or duties' under section 23 (5) of the Electoral Decree 2014 is invalid because it unlawfully discriminates against the Plaintiff and infringes on her right to equality before the law and right to equal protection, treatment and benefit of the law under section 26 of the Constitution.
4. An injunction restraining the First Defendant and the Third Defendant, whether by themselves, their subordinate officers, servants or agents or otherwise howsoever, from interfering with the Plaintiff's right to be a candidate in the 2014 General Elections in the Republic of the Fiji Island.
5. An order that the Defendants pay the Plaintiff's costs on full indemnity basis.
6. Such further or other relief as shall be just."
1.2 Notice of Motion was listed to be called on 22 July 2014, when Plaintiff was represented by her Counsel and Second and Third Defendants were represented by their Counsel.
1.3 On 22 July 2014 Counsel for Second and Third Defendants raised the issues that this Court does not have jurisdiction in respect to matters raised in the Notice of Originating Motion and also that this Court cannot usurp the powers of the Electoral Commission and nor can it grant injunction against the State.
1.4 Leading Counsel for the Plaintiff sought an early hearing date as a matter of urgency.
1.5 This Court in view of the nature of the subject matter gave following directions:
(i) Defendants are at liberty to file and serve Affidavit in Opposition to the Notice of Originating Motion by 24 July 2014.
(ii) Second and Third Defendants to file and serve Application to strike out Action by 23 July 2014.
(iii) Plaintiff is at liberty to file and serve Affidavit in Reply by 25 July 2014.
(iv) Hearing on preliminary issue on Jurisdiction, Striking Out Application and Notice of Originating Motion dated 10 July 2014 be adjourned to 28 July 2014 at 10.00am.
1.6 Parties were also directed to file their submissions on date of hearing.
1.7 On 24 July 2014, Second and Third Defendants filed and served Summon to Strike Out Notice of Originating Motion and Affidavit in Response to Plaintiff's Affidavit in Support.
1.8 On 25 July 2014, Plaintiff attempted to file Amended Notice of Originating Motion and Supplementary Affidavit when I directed the Registry to inform the Plaintiff that she will need to obtain leave of this Court prior to filing of such documents.
1.9 On 28 July 2014, Plaintiff by her Counsel made Oral Application to Amend Notice of Originating Motion and handed in a copy of the Amended Notice of Originating Motion dated 25 July 2014.
1.10 Proposed Amend Notice of Originating Motion seeks following relief:
"1. A declaration that on the proper meaning and application of the phrase 'ordinary resident' in section 23(4)(c) of the Electoral Decree 2014 includes Fiji citizens who are temporarily absent from Fiji for brief periods whether for non-government business or other activities;
2. A declaration that on the proper meaning and application of the phrase 'ordinary resident' in section 56 (2) (c) of the Constitution includes Fiji citizens who are temporarily absent from Fiji for brief periods whether for non-government business or other activities;
3. A declaration that the phrase 'on government business or duties' in section 23(5) of the Electoral Decree 2014 as applied to those prospective candidates deemed to be ordinarily resident in Fiji unlawfully discriminates against those individuals who are temporarily absent from Fiji on non-government business or other activities and therefore infringes on the Plaintiff's constitutional and political right to be a candidate for public office as guaranteed by section 23 of the Constitution;
4. A declaration that the phrase 'on government business or duties' in section 23 (5) of the Electoral Decree 2014 as applied to those prospective candidates deemed to be ordinarily resident in Fiji unlawfully discriminates against those individuals who are temporarily absent from Fiji on business or other activities and therefore unlawfully discriminates against the Plaintiff on grounds of her personal circumstances and infringes on her right to equality before the law and right to equal protection treatment and benefit of the law under section 26 of the Constitution;
5. A declaration that the Plaintiff is entitled (or qualified) to be a candidate in the general elections scheduled for 17 September 2014 under the provisions of section 23 of the Electoral Decree 2014 and section 56 of the Constitution."
1.11 Application to amend Notice of Originating Motion was opposed by the Second and Third Defendants.
1.12 At the close of submissions Plaintiff's Counsel informed the Court that Plaintiff does not challenge the Constitutional validity of the provisions of the Electoral Decree 2014 (Decree No. 11 of 2014) but wants the Court to define the term "Ordinary Resident in Fiji for at least 2 years immediately before being nominated" in Section 23 (4) (c) of the Electoral Decree 2014.
2.0 Background Facts
2.1 Electoral Decree 2014 (Decree No 11 of 2014) commenced on 28 March 2014, being date of publication in the Government of Fiji Gazette.
2.2 Section 23 of the Electoral Decree provides as follows:
"23 - (1) A person is not eligible to be elected as a member of Parliament unless duly nominated as a candidate in the election.
(2) A candidate for election to Parliament may be nominated by a registered political party or nominated as an independent candidate in accordance with the procedures prescribed in this Decree.
(3) A person is not eligible to be nominated as a candidate unless he or she is a registered voter, and a person who has been disqualified from voting by an order of a court under section 151 shall for this purpose be regarded as not registered to vote.
(4) A person is eligible to be nominated as a candidate for election to Parliament only if person -
(a) is a citizen of Fiji, and does not hold citizenship of any other country;
(b) is registered in the Register of Voters;
(c) is ordinarily resident in Fiji for at least 2 years immediately before being nominated;
(d) is not an undischarged bankrupt;
(e) is not a member of the Electoral Commission, and has not been a member of that Commission at any time during the 4 years immediately before being nominated.
(f) is not subject to a sentence of imprisonment when nominated.
(g) has not, at any time during the 8 years immediately before being nominated, been convicted of any offence under any law for which the maximum penalty is a term of imprisonment of 12 months or more; and
(h) has not been guilty of any offence under a law relating to elections, registration of political parties or registration of voters, including any offence prescribed under this Decree.
(5) For the purposes of subsection (4) (c), a person is deemed to be ordinarily resident in Fiji if that person has been out of Fiji for official Government business or duties or has been holding an official Government position in any other country." (emphasis added).
2.3 On 14 May 2014 National Federation Party wrote to the Chairman of Electoral Commission seeking an "interpretation from the Commission on the definition of "Ordinarily Resident" for the purposes of candidacy for the 2014 General Elections."
2.4 On 19 May 2014 Electoral Commission responded to aforesaid letter advising that "it is not for the Commission to give legal opinion to political parties or to interpret - statutory words on hypothetical basis.
2.5 On 9 June 2014, Plaintiff wrote to the Chairperson of Electoral Commission raising her concern regarding Section 23 (4) (c) of the Electoral Decree 2014.
2.6 On 11 June 2014 the Electoral Commission wrote to the Plaintiff advising her that her letter has been referred to Solicitor General and Supervisor of Elections.
2.7 On 23 June 2014 Plaintiff wrote to the Chairperson stating that she has not heard from Solicitor General's Office, raising her concern as to why letter was sent to Solicitor General and advising of her intention to take the matter further.
3.0 Application to Amend Notice of Originating Motion
3.1 Leading Counsel for the Second and Third Defendants submitted that this Court cannot allow Amendment of the Notice of Originating Motion prior to determining the jurisdiction.
3.2 In Ex-parte McCardle 74 U.S (7 walls) 506 (1868) the Chief Justice of Supreme Court of United States stated as follows:
"Without jurisdiction the Court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause. And this is not less clear upon authority than upon principle."
In Ex-parte McCardle the congress enacted an Act granting several Court of the United States power to grant to writ of habeas corpus in all cases where persons liberty is restrained in violation of the Constitution. Final decision of any Court inferior to Circuit Court, may be appealed to Circuit Court of the United States of the District and from Judgment of the Circuit Court to the Supreme Court of the United States.
Petitioner was held by military for trial before a military commission who caused writ of habeas corpus to be issued and upon hearing the petitioner, he was held in military custody. Petitioner appealed to Supreme Court and whilst the appeal was pending congress amended the above Act to remove the right to appeal to Supreme Court. Supreme Court of United State dismissed the appeal for want of jurisdiction.
3.3 It is well established that if the Court does not have jurisdiction to grant relief sought then the matter ends at that point.
3.4 In Padarath & Anor v. His Excellency the President of Fiji & Ors [2013] FJHC 116; HBC 33 of 2013 (14 March 2013) her Ladyship Justice Wati stated as follows:
"Whether the Court has powers to consider any proposed application for leave to amend the originating summons or give directions to the registry to accept the amended originating summons the Court must first establish that it has jurisdiction on the existing substantive cause. If the Court does not have any jurisdiction to hear the substantive cause, it cannot hear any oral or formal application for leave to amend. Hearing the application for leave to amend or giving directions for filing of amended process will tantamount to exercising of jurisdiction. It was therefore prudent that the preliminary issues on jurisdiction be heard and determined."
3.5 In Padarath's case the Plaintiff sought an injunction against Registrar of Political Parties from de-registering Fiji Labour Party under the Political Parties (Registration, Conduct and Disclosure Decree 2013). At the date of hearing of the Application for injunction Counsel for the Plaintiffs informed the Court that Plaintiffs intend to amend their Application and that Application to Amend has been filed in Court Registry.
At that point in time Counsel for the Defendants raised the issue that Court has to first decide the preliminary issue of jurisdiction and if Court holds that, it does not have jurisdiction to grant relief in the Original Application then it cannot allow the Amendment.
3.6 It is therefore imperative that this Court will first need to determine as to whether it has jurisdiction to grant relief sought in Notice of Originating Motion dated 10 July 2014, and if this Court finds that it does not have jurisdiction to grant relief sought in the said Notice of Originating Motion then it cannot deal with Amendment Application.
4.0 Jurisdiction
4.1 Leading Counsel for the Second and Third Defendant's submitted that pursuant to Section 173(4) of 2013 Constitution and Sections 5(3), (4), (5), (6) and (7) of the Administration of Justice Decree 2009 this Court does not have jurisdiction to deal with the unconstitutionality and unlawfulness of the provisions of the Electoral Decree 2014.
4.2 Section 173 of the 2013 Constitution provides as follows:
"(4) Notwithstanding anything contained in this Constitution, no court or tribunal (including any court or tribunal established or continued in existence by the Constitution) shall have the jurisdiction to accept, hear, determine, or in any other way entertain, or to grant any order, relief or remedy, in any proceedings of any nature whatsoever which seeks or purports to challenge or question:
(a) the validity or legality of any Promulgation, Decree or Declaration, and any subordinate laws made under any such Promulgation, Decree or Declaration (including any provision of any such laws), made or as may be made between 5 December 2006 until the first sitting of the first Parliament under this Constitution;
(b) the constitutionality of any Promulgation, Decree or Declaration, and any subordinate laws made under any such Promulgation, Decree or Declaration (including any provision of any such laws), made or as may be made between 5 December 2006 until the first sitting of the first Parliament under the Constitution;
(c ) any Promulgation, Decree or Declaration, and any subordinate laws made under any such Promulgation, Decree or Declaration (including any provision of any such laws), made or as may be made between 5 December 2006 until the first sitting of the first Parliament under this Constitution, for being inconsistent with any provision of this Constitution, including any provision of Chapter 2 of this Constitution; or
(d) any decision made or authorised, or any action taken, or any decision which may be made or authorised, or any action which may be taken, under any Promulgation, Decree or Declaration, and any subordinate laws made under any such Promulgation, Decree or Declaration (including any provision of any such laws), made or as any be made between 5 December 2006 until the first sitting of the first Parliament under this Constitution, except as may be provided in or authorised by any such Promulgation, Decree or Declaration (including any provision of any provision of any such laws), made or as may be made between 5 December 2006 until the first sitting of the first Parliament under this Constitution.
(5) Notwithstanding anything contained in this Constitution, despite the repeal of the Administration of Justice Decree 2009, subsections (3), (4), (5), (6) and (7) of Section 5 of the Administration of Justice Decree 2009 shall continue to apply to any Promulgation, Decree or Declaration (including any provision of any such laws), made or as may be made between 5 December 2006 until the first sitting of the first Parliament under this Constitution."
4.3 Section 5(3) to (7) of Administration of Justice Decree 2009 provides:
"5(3) Notwithstanding anything contained in this Decree or any other law, no court shall have the jurisdiction to accept, hear and determine any challenges whatsoever (including any application for judicial review) by any person to the Fiji Constitution Amendment Act 1997 Revocation Decree 2009 (Decree No. 1) and such other Decrees made or as may be made by the President.
(4) Notwithstanding anything contained in this Decree or any other law, no Court shall have the jurisdiction to accept, hear and determine, or in any other way entertain, any challenges whatsoever (including any application for judicial review) by any person to the validity or legality of any Decrees made by the President from 10 Aril 2009 and any Decrees as may be made by the President.
(5) Any proceedings of any form whatsoever, as well as any application of any form whatsoever in a proceeding, seeking to challenge the validity or legality of the Fiji Constitution Amendment Act 1997 Revocation Decree 2009 (Decree No. 1) or any other Decrees made by the President from 10 April 2009 or as may be by the President, shall wholly terminate immediately upon the commencement of this Decree, and a Certificate to that effect shall be is issued by the Chief Registrar to all parties to the proceedings.
(6) Where any proceeding of any form whatsoever, as well as any application of any form whatsoever in a proceeding, seeking to challenge the validity or legality of the Fiji Constitution Amendment Act 1997 Revocation Decree 2009 (Decree No. 1) or any other Decrees made by the President from 10 April 2009 or as may be made by the President, is brought or made before a judicial officer or a Tribunal, then the judicial officer or the Tribunal, without hearing or in any way determining the proceeding or the application as the case may be, shall immediately transfer the proceeding or the application to the Chief Registrar, for termination of the proceeding or the application and issuance of Certificate under subsection (5).
(7) In this section, 'judicial officer' includes Judge, Master of the High Court, Chief Magistrate and resident magistrate." (emphasis added)
4.4 Reliefs 1, 2 and 3 in the Notice of Originating Motion dated 10 July 2014 challenges the validity of provision of Section 23 (5) of the Electoral Decree 2014.
4.5 Provisions of Section 173 (4) of the Constitution and Section 5 (3) to (7) of Administration of Justice Decree ousts the Court jurisdiction to deal with any action challenging the validity of the provision of Electoral Decree. These provisions are drafted in very wide terms.
4.6 Relief 4 in Notice of Originating Motions seeks injunctions against the State and its officers which is specifically prohibited by Section 15(2) of Crown Proceedings Act which provides as follows:
"15(2) The Court shall not in any civil proceedings grant any injunction or make any order against an officer of the Crown if the effect of granting the injunction or making the order would be to give any relief against the Crown which could not have been obtained in proceedings against the Crown."
4.7 Fiji Court of Appeal in Bainimara v. Heffernan [2008] FJCA 78 Civil Appeal No. ABU0034 of 2007S stated as follows:-
"44. No Court will knowingly make an order beyond its power and any judge would need to be satisfied that he or she had the power before making an unusual or novel order.
45. However here there was no analysis by the trial judge of the submission by Dr. Cameron. The trial judge in his decision to grant the injunction did so knowing that it was only "arguable" that the Court had the power to do so and therefore that it was only "arguable" that the Court was not committing an illegal act.
46. This is a matter which ought to have tipped the balance beyond reason. At the very least the trial judge ought to have satisfied himself that it was more likely than not that the Act did not prevent him from ordering the injunction. He did not do this but took the risk in a case that could not justify such a risk, in a case where there seemed little urgency and where there was doubtful utility in granting the injunction.
47. In failing to properly take into account this highly relevant material consideration the trial judge made a serious error in the exercise of his discretion."
4.8 In any event this relief is a clear abuse of Court process in that there is not any frailest of evidence that the Defendants and/or its officers servants or agents or otherwise whosoever have in any way interfered with Plaintiff's right to seek nomination as a candidate.
4.9 At the close of submission on 28 July 2014, Plaintiff by her Counsel informed the Court that Plaintiff is not challenging the validity, lawfulness or Constitutionality of the Electoral Decree but moves the Court to define the phrase "Ordinary Resident" in Section 23(4)(c) of the Electoral Decree.
4.10 It must be noted that even though this court has unlimited original jurisdiction to hear and determine any civil or criminal proceeding under any law or matters arising under the Constitution or involving its interpretation as provided for in Section 100(3) and (4) of 2013 Constitution the jurisdiction to determine matters relating to election is special jurisdiction.
4.11 Jurisdiction/Power to determine the pre-election matters such as registration of voters, registration of political parties and nomination of candidate and so on are granted to Supervisor of Elections and Electoral Commission whereas jurisdiction to determine dispute post-election is granted to Court of Disputed Return which is the High Court of Fiji (Part 5 - Electoral Decree 2014).
4.12 In Prasad v. Singh [2002] FJHC 8:HBC 0 269 of 2011 (8 February 2002). His Lordship Justice Gates (as he then was) the current Chief Justice in dealing with post-election dispute stated as follows:
"It is clear the Court of Disputed Return exercise a special jurisdiction allowed by the Constitution and under the Electoral Act which legislation is in the nature of a code Osborne v, Shepherd [1981] 2 NSWLR 277 at p208G: Josefa Rusaqoli v. Attorney - General & Anor. (unreported) Suva High Court civil Action No. 0149 of 1994S; 6 June 1994 at p6."
4.13 No jurisdiction has been granted to this court in respect to pre-election matters.
4.14 The rationale for the special jurisdiction is that matters relating to pre-election issue and post-election issue must be determined expeditiously. (see Prasad v. Singh supra)
4.15 During the course of finalising this Ruling I was referred to Electoral (Amendment) (No. 2) Decree 2014 (Decree No. 26 of 2014) published in yesterday's Government of Fiji Gazette by Counsel for 2nd and 3rd Defendants which repealed subsection 5 of Section 23 of the Electoral Decree 2014 and substituted the following:-
"(5) For the purpose of subsection (4)(c), a person shall only qualify to be ordinarily resident in Fiji for at least 2 years immediately before being nominated, if that person has been present and living in Fiji for an aggregate period of not less than 18 months out of the 2 years immediately before being nominated."
Amendment Decree also inserted the following subsection after subsection (5):-
"(6) Notwithstanding anything contained in subsection (5), any person who has been out of Fiji for official Government business or duties or has been holding an official Government position in any other country, shall be deemed to be ordinarily resident in Fiji for the purposes of subsection (4)(c)."
4.16 Subsection 6 has the same effect as Subsection 5 in the Electoral Decree 2014 prior to the amendment and as such for all intent and purpose Plaintiff's Notice of Originating Motion is deemed to challenge subsection 6 of Section 23 of the Electoral Decree.
4.17 I hold that this Court does not have jurisdiction to deal with or grant the relief sought by the Plaintiff in the Notice of Originating Motion dated 10 July 2014.
4.18 It follows that this Court cannot therefore deal with Plaintiff's Oral Application to amend Notice of Originating Motion dated 10 July 2014.
4.19 If the Plaintiff and/or her legal advisors are of the view that this Court has jurisdiction to grant the relief in the Proposed Amended Notice of Motion then Plaintiff should seek such reliefs in a separate action and not by amending the motion in this proceedings.
5.0 Costs
5.1 Second and Third Defendants seeks costs on indemnity basis but has not made any submissions on to why indemnity costs should be awarded.
5.2 Even though the Plaintiff sought reliefs which could not be sustained or dealt with in light of the Section 173 of 2013 Constitution, Section 5 of Administration of Justice Decree 2009 and subsection 15(2) of the Crown Proceedings Act, I am inclined to award cost on party-party basis.
6.0 Conclusion
I make the following orders:
(i) Plaintiff's Notice of Motion dated 10 July 2014 and this action is dismissed and struck out for want of jurisdiction;
(ii) Plaintiff is to pay Second and Third Defendants costs jointly assessed in the sum of $3,000.00.
Kamal Kumar
JUDGE
At Suva
1 August, 2014
[email protected]
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