CONFLICTING OPINIONS IN FIJI COURTS; BAINIMARAMA WOOS

UNCLAS SUVA 000432


PLEASE PASS TO EAP/ANP

E.O. 12958: N/A
TAGS: PGOV PREL FJ
SUBJECT: CONFLICTING OPINIONS IN FIJI COURTS; BAINIMARAMA WOOS
FIJI'S CHIEFS


1. (SBU) Summary: A High Court injunction ordering the Interim
Government (IG) to cease all work promoting the Peoples' Charter was
overturned only hours after it was issued on November 14, following
an urgent ex parte appeal by Fiji's interim attorney general to a
judge more sympathetic to the IG. The injunction had prohibited the
use of government offices, officers, and the expenditure of
government funds for Charter related work. Meanwhile, in a bid to
resolve the long-running standoff between the IG and Fiji's
traditional chiefs, newly appointed Minister for Indigenous Affairs
Ratu Epeli Nailatikau is organizing a "Bose Vanua", a full meeting
of the heads of Fiji's 212 indigenous clans, on December 9 and 10.
Fiji's paramount chiefs have for the most part remained steadfast in
their opposition to the IG and Peoples' Charter process, and have
with good reason expressed suspicion of IG motives. End summary.

High Court Issues Injunction on Peoples' Charter
-------------- ---


2. (U) In October, the ousted SDL party filed a lawsuit in Fiji's
High Court alleging that work conducted by the National Council for
Building a Better Fiji (NCBBF),in promoting the Peoples' Charter,
violated Fiji's constitution. On November 14, High Court Justice
Filimoni Jitoko issued an injunction on all further Charter
promotion work by the NCBBF pending a trial on the merits of the
case. The injunction prohibited the IG from holding public
gatherings, using civil servants and government property, and
expending public funds to promote the Charter. The injunction
represented a temporary but significant event given that Bainimarama
has repeatedly stressed that there will be no elections until the
people of Fiji "voluntarily" accept the Charter and its
recommendations. Hours later, following an ex parte application to
Justice John Byrnes, IG lawyers obtained a stay order, effectively
squashing the injunction and removing the case from Justice Jitoko's
purview.


3. (U) The IG has spent a vast amount of public funds and resources
promoting the Peoples' Charter. The NCBBF, which drafted and
coordinates Charter outreach activities, was initially allocated US
$1.2 million in Fiji's 2008 budget. However, shortly after the
Charter's launch in August, the IG instructed government departments
to use their own budgets to undertake various promotion activities.
For the past four months, teams of outreach officers, accompanied by
soldiers, police and detailed civil servants, have held meetings in
villages across the country. The IG reports that more than 145,000
people have been consulted, of whom 130,000 support the Charter.
The amount spent promoting the Charter could well exceed by three or
four fold the amount authorized in the budget.


4. (SBU) Comment: The events of Friday afternoon provide yet another
illustration of the deep divisions within Fiji's judiciary. The
injunction was issued by Justice Jitoko, a respected and independent
jurist, and former High Commissioner to London. The interim
attorney general, in response, turned to 77 year old Justice John
Byrne, a former member of Fiji's judiciary who had retired to
Australia before being brought back by the IG-appointed Acting Chief
Justice Anthony Gates. The Fiji Law Society and other parties have
challenged both Gates' and Byrnes' appointments as unconstitutional.
Friday's proceeding is the third time in recent history the IG has
turned to Byrnes for an ex parte stay order removing a case from the
ambit of lower court judges. End Comment.


5. (SBU) Regardless of the outcome of this most recent round of
legal wrangling, many of Fiji's most prominent political parties,
along with the powerful Methodist Church, remain steadfast in their
opposition to the Charter. The Methodist Church has been
endeavoring to collect its own signatures of those opposed to the
Peoples' Charter, with some 60,000 signatures reportedly collected
thus far.

Hoping to Mend Some Fences
--------------


6. (SBU) Meanwhile, in a bid to resolve the long-running and
multifaceted standoff between the IG and Fiji's powerful traditional
chiefs, newly appointed Minister for Indigenous Affairs Ratu Epeli
Nailatikau has invited the chiefs to a "Bose Vanua," which is a full
meeting of the heads of Fiji's 212 indigenous clans, on December 9
and 10. Thus far, a few minor chiefs who supported the 2006 coup
have voiced support for the meeting, while the vast majority,
including most of the senior chiefs, have remained silent. Since
the proposed meeting is not of the constitutionally recognized Great
Council Chiefs, at most, Bainimarama hopes to increase support for
the draft Charter and his "new look" GCC, which he says he will
convene in 2009.


7. (SBU) It's highly likely that a majority of chiefs will align
themselves with Fiji's confederacy paramount chiefs, all of whom
served in Qarase's cabinet and were ousted from office by
Bainimarama. Many are highly suspicious of the move and suspect it
is designed to secure approval to reconvene the GCC, which
Bainimarama dismantled last year after it rejected his nominee for
vice president (the now Minister for Indigenous Affairs Ratu Epeli
Nailatikau). Many chiefs are also still smarting over derogatory
comments made by Bainimarama in December 2006 when he told them to
"go and drink homebrew under a mango tree." Ratu Naiqama
Lalabalavu, a powerful chief and former cabinet minister in the SDL
government recently said that Bainimarama needs to present a
traditional apology for his disrespectful behavior before the chiefs
will consider coming to the table.


8. (SBU) Comment: There are good reasons for the chiefs to be
suspicious. Under Fiji's constitution, the GCC appoints Fiji's
president and vice president. With each passing day, the need to
appoint a vice president to back up Fiji's ageing 87 year old
president, Ratu Josefa Iloilo, becomes more acute. After
dismantling the GCC and terminating the appointments of all 52
members in April 2007, Bainimarama promulgated new regulations that
effectively bar a number of chiefs from membership in the "new look"
GCC. Many of these chiefs are very senior and powerful, and most
were members of the ousted SDL government. Eleven of Fiji's 14
provincial councils have responded to the new regulations by
declaring the revised GCC unlawful and refusing to nominate members.
As a result, the GCC has been unable to meet and Fiji has no vice
president. However, the recent High Court decision legitimizing the
post-coup actions of the President quite clearly states that IG
promulgations - such as that revising the criteria for GCC
membership - are constitutional. If Fiji's high chiefs continue to
refuse to participate in the GCC, the IG could feasibly issue new
regulations expanding the criteria of those eligible for membership
(for example, lower ranking chiefs),in which case the IG could
find enough willing participants to form a quorum and nominate a
vice president. This however, would be a dangerous course of
action, even for Bainimarama. End comment.

MCGANN