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By Michael Field

AUCKLAND, New Zealand (January 25, 2001 – Agence France-Presse)---Fiji’s Court of Appeal will have to rule on who is the Pacific nation’s effective government now and not on the issues of the coup and who was government, a leading Queen’s Counsel involved in the issue, Anthony Molloy, said here Thursday.

The opponents in the case will have to counter by showing there is a "rival competing government" ruling or ready to rule.

In an interview with AFP, Molloy said legally "it is a well worn path" with plenty of case law, including Pakistan constitutional cases, Rhodesia’s 1965 unilateral declaration of independence (UDI) and the establishment of buntustans or African homelands under the South African apartheid government.

A full five strong bench of the Appeal Court, headed by New Zealander Sir Maurice Casey, will hear the case next month in what is being billed as critical to the future of Fiji. Local media reports say there are fears for the security situation in the event that the court judgment is interpreted as ordering a return to the overthrown government of Prime Minister Mahendra Chaudhry.

In a letter to the New Zealand Herald, Molloy, who acted in court earlier this month for the interim Fiji government, took issue with news reports that say that government had faced legal setbacks in recent rulings.

Fiji is currently facing a constitutional hiatus in the wake of last May 19th’s coup by failed businessman George Speight, who seized Chaudhry and his government and held them hostage for 56 days. On May 29 the military declared martial law, abrogated the constitution, forced President Sir Kamisese Mara to step aside and ruled for a time before installing the current interim government of Prime Minister Laisenia Qarase.

On November 15, Justice Anthony Gates of the Fiji High Court, on an application from a cane farmer, ruled that the constitution was still in place and Mara was still president. Gates reached his judgment without hearing evidence from the interim government.

The state has appealed Gates’ ruling.

On January 17, the Appeal Court, headed by New Zealander Sir Maurice Casey, heard interim matters argued by Molloy and ruled on one issue that Gates’ judgment "does not have any legally coercive effect."

"A finding that Justice Gates’ decision was not legally coercive, and that there was nothing to be stayed, therefore was not a ‘setback’ for the interim government’s case at all," Molloy said.

On a second issue, Casey found in favor of the interim government, which argued it should be allowed to present evidence it was unable to present before Gates.

Casey’s ruling said the evidence should be admitted: "A major factor in assessing the legality of the present administration is said to be the extent to which it is effectively governing the country and receiving public support. This court cannot close its eyes to any relevant developments over the months following the hearing."

Molloy said it was clear that the interim government had not suffered a setback.

"Fiji has problems which could cause Solomon loss of sleep," Molloy wrote.

"The last thing the country needs is for the situation to be inflamed by mis-reporting."

In an interview, Molloy said that Gates had imposed an impossible deadline on the state to provide evidence that it was ruling the country and that this evidence was now allowed to be presented in the Appeal Court.

The principle to be considered was that "the law doesn’t make government; government makes law" and, in effect, the court had to deal with the realpolitik of the situation.

In his argument before Casey, 13 affidavits were provided from the state.

"They pointed out that the country was functioning perfectly normally," Molloy said. "The police are effective, the taxes are being paid, the government commands the army and the country is running smoothly."

In the case of Rhodesia’s (now Zimbabwe) UDI the legal issue reached the House of Lords, where it was found that while the government of Ian Smith was in place in the country, there was a rival, functioning alternative which was the British government.

In Fiji, the state’s opponents will now have to show to the court that there is a practical, functioning alternative government in place.

A British QC, Nicholas Blake, will argue the case next month before a bench that will be made up of Australians, New Zealanders and a Papua New Guinean.

Michael Field New Zealand/South Pacific Correspondent Agence France-Presse E-mail:  Phone: (64 21) 688438 Fax: (64 21) 694035 Website: 

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