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Question hinges on whether President acted legally

SUVA, Fiji (Fijilive, April 6, 2009) – Fiji’s President had the powers to make decisions outside the country’s Constitution, the lawyer representing the State has argued, on the first day of hearings into an appeal against a ruling that legalised the appointment of Fiji’s interim government.

Richard Gordon QC focused his submissions on the President’s powers of necessity, the crux of last year’s High Court ruling in favour of the interim government appointed after the 2006 military takeover.

Gordon said the powers of necessity President Ratu Josefa Iloilo used when giving legality to the military-proposed interim government was common law.

He added that in the case of a monarch, he or she had the powers to decide if parliament or the prime minister could be relieved of their duties.

"The crisis situation in Fiji was such that the head of state had to move outside the boundaries of the Constitution, however there is no clear definition on what the head of state may or may not to do," said Gordon.

He said the President’s prerogative powers had been recognised by the High Court, that there was an emergency power that could be used by the President.

He was then told by the judges that the situation in Fiji was different, that it was not a monarch but a republic with a constitution. Gordon replied that although Fiji was a republic, the Constitution stated that the President did have emergency powers but the situation fell outside conventional mechanisms.

Gordon added that the 1990 Constitution clearly defined the prerogative powers which included the prerogative of mercy, as did the 1997 Constitution which he said did not carry any words that excluded the executive powers of the President.

"The government was paralysed, what could have been done, the president therefore used his powers, such a crisis situation had arrived."

Ousted prime minister Laisenia Qarase is appealing last year’s ruling, with his lawyer Bratt Walker arguing today that the President did not have the powers to appoint an interim administration, and, that Qarase was still Prime Minister as he had not resigned as stated in the Constitution.

The hearing continues tomorrow morning.


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