RECORDS OF CIVIL ACTION NO. HBC 60/07 LAISENIA QARASE & OTHERS VS JOSAIA VOREQE BAINIMARAMA & OTHERS HELD INTHE SUPREME COURT ROOM ON 
WEDNESDAY, 5TH MARCH, 2008 AT 2.40 P.M.



CORAM : Hon. Acting Chief Justice A.H.C.T. Gates
Hon. Justice J.E. Byrne
Hon. Justice D. Pathik

Mr. N. Perram SC } For the Plaintiffs
Ms. R.A. Pepper }
Mr. T. Fa }

Mr. C. Pryde SG }
Mr. G.O'L. Reynolds QC } For the Defendants
Mr. Kramer }


Dr. S. Shameem } Amicus Curiae
Ms. S. Colavanua
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MR. N. PERRAM.- My Lords, in view of the adjournment which has occurred, agreement has been reached between the 3rd Defendant and the Plaintiffs on what the issues are. That is between Mr. Reynold's client, the State of Fiji and the Plaintiffs, and that has been reduced to the document, which he and I have signed. I will hand out the original signed version and two copies. 

ACTG. CHIEF JUSTICE.- Well, that is nice and neat.

MR. N. PERRAM.- Yes. May be I just make three remarks about it. The first is, obviously on its face, these issues are much narrower than the ones, which have afflicted the case so far, as between the Plaintiffs and the 3rd Defendant. That is the first issue. For our side of the ledger, we express thanks to the representatives of the 3rd Defendant for narrowing the issues in the way they have.

The second matter which needs to be said, and I say this with the consent of my friend, Mr. Reynolds is that Your Lordships will see in question one, a secondary question is posed and if so argued events which occurred in December, 2006 relevant to the determination of that issue. From our side of the ledger, we understand that to involve an examination of the question of whether the events of 5th December that is the Coup and the events, which happened thereafter, were lawful. That is what we understand by that issue. I know their draft, the Order is included, that as a full statement, but that is why we apprehend that issue raised. That way that argument works, I will develop this more when I come to open the case again, that if the Prime Minister was not removed by the Commodore because the Commodore's actions in taking control of the State were illegal, then the fact that the Prime Minister was still in office means that no other Prime Minister could be appointed. That is what is being sought, we got at from our perspective in question one. 

That second matter brings me to the third, which is this, my friend and I agreed about this. The issues, which arise at a constitutional level, in this case are very subtle and complex, he and I doing the best we can, have attempted to agree a form of questions or issues which both of us can live with. I think it will be fair to say that neither of us is completely happy with these issues....

ACTG. CHIEF JUSTICE.- That is understandable.

MR. N. PERRAM.- I do not think that either of us sees this document as necessarily the last word, and it may be that mine or both of us may seek in some way to move from this. There is nothing that can be done about that, that is the nature of the litigation, but this is our best effort so far. 

ACTG. CHIEF JUSTICE.- We are grateful for that. 

MR. N. PERRAM.- As between the Plaintiffs and the other Defendants, I think the best thing is to let Mr. Pryde explain what has happened in relation to those.

ACTG. CHIEF JUSTICE.- Can I get confirmation that there has in fact been a conference?

MR. N. PERRAM.- Yes, a couple of hours of conferences had taken place in the lobby of the Holiday Inn. Two conferences took place between all the people at the bar table except Mr. Fa. 

ACTG. CHIEF JUSTICE.- So, all the parties have been represented in the conference?

MR. N. PERRAM.- Yes, I will let Mr. Pryde explain the position of the other Defendants. 

MR. C. PRYDE.- My Lords, I am pleased to report that there has been progress, and on behalf of the first, second and fourth defendants, we also agree with the four issues that are in dispute between the Plaintiff and the 3rd Defendant. We agree with that. I believe, however, there will be one or possibly two other issues, which would need to be included. Now, I would like to confirm this with Mr. McCoy, the lead Counsel, he will be in the country very shortly, and I am confident that we will be able to reach some agreement on those one or two outstanding issues before tomorrow morning. 

ACTG. CHIEF JUSTICE.- This is really a general observation. I am very grateful for the conciseness with which these agreed issues have now been tabulated. As Mr. Perram has indicated, there may be some traps in the sense that there are some issues here that the Court will have to decide in order to arrive at the answer to the main question. Obviously, that is important, and it is also important that the Court perhaps reaches them in the right order, in order to be both logical and not to waste any time calling matters that may not be relevant if the decision is (a) or (b) on a certain question earlier on. Although we can see that we have made a lot of progress on this, in this complex area, we would need perhaps to know what some of those sub-issues are and the order that Counsel thinks that we should address them. I am not saying that the Court will call upon him to answer in that order, but we would like to have your views as to what you think is the right order. 

Bearing that in mind, it may well be that the Plaintiff's Counsel and the Counsel for the 3rd Defendant will modify this, even between now and tomorrow, but at least from the nature of the pleadings, we have something to focus on. 

Mr. Perram, have you anything to say in reply to Mr. Pryde?

MR. N. PERRAM.- Only this that, the reason we have not been able to embark upon an agreement as directed to the Court, in relation to these issues, and one can understand why Mr. Pryde does not feel able to conclude agreement in the absence of Mr. McCoy. 

My friend, Mr. Pryde the Solicitor-General has said that there may be one or two other issues. There are as far as we know dozens of other issues floating around in the case, we have no inkling of what the two issues, which he refers might be, and I fully understand why until he speaks to Mr. McCoy, he might not know, but it does rather mean that the process of seeking to agree the issues which the Court directed was largely fruitless in the absence of Mr. McCoy, and that in substance, the adjournment which was refused has been acceded to indirectly; not in a direct sense obviously. 

ACTG. CHIEF JUSTICE.- That is only partially true as you know, because the rules have not been complied with, so far as the pre-trial conference is concerned, and it is very important that we have a signed agreement by Counsel in support of what you say are the issues.

MR. N. PERRAM.- Just in relation to the question Your Lordship asked about whether the Plaintiffs and the 3rd Defendants will be adding further issues to questions 1, 2, 3, and 4.... 

ACTG. CHIEF JUSTICE.- I am not so sure that is right to say, "adding issues". I think from the way these agreed issues have been framed so far, well you yourself referred to whether they throw up or shut doors on other matters that must be arrived at before we can answer this question. We would like to have those tabulated, we would not want you to put them in the document this afternoon, but it would appear there are some sub-points here that we need to look at. It should not add very much to this document, but at the moment, to answer this question, we will need a visiting of other issues, and I think we could perhaps get agreement amongst Counsel what those issues are. I am not asking that it be done this afternoon, but if you feel it could be done by tomorrow, we would be very grateful.

MR. N. PERRAM.- Of course, we would try, but I have to tell Your Lordships, we are at the very edge of what we can agree between us in one of the document, which is there. Agreement cannot be gouged from disagreement. 

ACTG. CHIEF JUSTICE.- Well, we have made a great deal of progress, Mr. Perram, so do not give up hope. I am very hopeful that we will know what this trial is about.

MR. N. PERRAM.- There is nothing further that I can add.

ACTG. CHIEF JSUTICE.- Just before leaving this matter, are any observations to be made about the conditions for coverage by television? 

MR. C. PRYDE.- Yes, I would like to address the Court on that.

ACTG. CHIEF.- On all sides or.....

MR. N. PERRAM.- Not from our perspective. We think there might be a typographical error in Order 12. That is our only observation. 

Your Lordships will see it refers to "live footage". As we apprehended, what was intended was that 90 seconds of footage could be used on the news, so long as it did not perhaps sound the use of the expression, "live footage". The word, "footage" which is referred to in Order 12 is footage without sound, which may be played on the news. That footage, if it on the news, which is at 6 p.m. would not be live footage. "Live footage" is footage, which goes to air at the same time it is filmed. That is just an observation we had. 

ACTG. CHIEF JUSTICE.- I think we have actually unthinkingly borrowed that particular phrase from the last Judge's Order. We would hope that all television footage is live, it would be very uninteresting if it was not. Well, nothing would move I think if it was not live. We have made progress on the previous issues and we have a document signed by the Plaintiffs and the 3rd Defendant. I do not really see, Mr. Pryde, why there could not be one signed by the 1st, 2nd and 4th Defendants. We expect that these documents are not set in concrete and there will have to be more discussions. It has already been indicated by Mr. Kremer and Mr. Reynolds that they may have to do a slight tinkering with it between now and tomorrow morning. But I do not see why that is going to impede your clients in having a similar document prepared and signed up today.

MR. C. PRYDE.- Certainly, My Lord, I could sign up for the first four issues. I do not have a problem doing that, between the plaintiff and the third defendant because the first, second and fourth defendants do say that those issues outlined in that document are issues in dispute. I have no objection to signing on behalf of the first, second and fourth defendants to that document.

ACTG CHIEF JUSTICE.- Well, Mr. Perram, is that the answer?

MR. N. PERRAM.- That is obviously helpful, but it still does not tell us what the mysterious two other issues are.

ACTG. CHIEF JUSTICE.- No.

MR. N. PERRAM.- It could be we are on day five or six of this trial now and it would be useful if those defendants could say what those issues in the case has been.

ACTG. CHIEF JUSTICE.- We are spluttering, I am not sure that we have got going yet, gear is engaged but clutch is not out.

MR N. PERRAM.- My clients are very enthusiastic my Lord. Obviously, Mr. Qarase should be called as a witness and this trial should begin. And obviously we accept as useful this process of trying to define the issues. But this is a very large case and experience teaches that often the best thing to do with cases like that is for them to start.

JUDGE BYRNE.- (Inaudible)

MR. N. PERRAM.- I was simply making a point that we have been in this trial now for several days and it started and went on for three or four days last October. We have been attempting to refine issues which we all accept is a useful thing to do, but in a case like this it is probably better that we begin the trial and the witnesses are called and the issues will as issues do in trials begin to take care of themselves. Now we do not stand in the way of Mr. Pryde articulating a document, which he says what the issues are. 

Surely by now fifteen months after all these happened, surely his clients and he are able to say what the issues basically are. Give me something that is useful. I just need to have the trial started and Mr. Qarase has to go into the witness box so we can start.

ACTG. CHIEF JUSTICE.- Right, we have indicated that we would like this document prepared. We are not going to delay proceedings any further whilst that has been done, but it should be done today and any amendments must be with the Court by tomorrow. I have only got this filed at the moment and we do need the other document filed. As far as the conditions go, are there any other observations on conditions?

MR. C. PRYDE.- My Lord, I would just like to make it clear and I accept that the Court has ruled that Fiji TV should be allowed to broadcast. I think it should be made perfectly clear to Fiji TV, that any breach of the limitations laid down by the Court will be treated very seriously and in fact it would be a contempt of the Court were they to breach those limitations. 

My Lords, I note from your ruling that there will be broadcasts of witnesses giving evidence and I do remain stringently opposed to that, for the reasons that this trial is going to be raising very sensitive issues and there will be a lot of emotion as the evidence and the issues are unveiled. I think there is a very real risk that certain witnesses may use television coverage of these proceedings as a platform to incite people. I do not say that lightly because this has happened before. In fact last week we have seen examples of certain people that maybe accused of inciting the public. I think the Court needs to tread very carefully, that the proceedings are kept in a formal way and that this Court is not used for purposes other than the hearing of these issues. This is a Court of justice and I think that there is a very real risk that the proceedings can be highjacked for other purposes. 

My Lords, that is all I am going to say on that matter. I accept the ruling that proceedings will be televised, but I just wish to re-iterate my opposition. I would be prepared of course, to accept the filming except for the filming of witnesses giving evidence in the cross examination of those witnesses.

JUDGE BYRNE.- (inaudible)

MR. C. PRYDE.- Yes, that is true. My Lords, there are parts which would be live and I am not quite sure exactly how it is necessarily going to work, but nevertheless this is my fear and he can object to these things. Again the objections will be on television and one thing can lead to another. My Lords, my submission on the filming of these proceedings is acceptable to us, but I would respectfully submit that the filming of witnesses giving evidence and the cross-examinations of those witnesses should not be covered by the television coverage.

ACTG. CHIEF JUSTICE.- Mr. Reynolds, do you have anything to add?

MR. G.O'L. REYNOLDS.- Perhaps if the Fiji TV is not present, and I do not know whether that is a necessary matter. It was in the submission, which we have just made; perhaps it was made accidentally a suggestion that something that might be said might be inciteful. I think it was accompanied with an implicit suggestion that there could be consequences for that. I am sure that was not what was intended. Of course, if the Solicitor General has been instructed to make a submission of that kind that involves the most serious contempt of this Court, in relation to the way witnesses give their evidence. However, I am sure that is not what he intended.

ACTG. CHIEF JUSTICE.- Well, it is very important that the decorum and dignity of Court proceedings is maintained. It has been made plain by the Court in ruling number seven in the final paragraph 18 - we make it clear that we expect careful adherence to these conditions if televising is to be permitted throughout the proceedings. That means of course, that the Court would withdraw the grant of leave to televise the proceedings, if there was an abuse of any of that provision. 

One of the reasons of course why in a trial like this with public interest and with the likelihood of allegations of one sort or another being raised, is that we were insistent on the issues being identified by all the parties. Because if the issues are identified by the parties as the relevant issues, then the witnesses can be kept by counsel to those issues alone and not to veer off them and that is why we are so insistent that we stick to the issues as agreed. And we wanted that to be clear from the start and we are only going to deal with the matters to the issues for determination. Now we would hope that before very long those issues will be beyond doubt and if all counsel will be content that they have got their points before the Court for determination. 

I think all I would urge is for Counsel to remember that when we do enter evidence to keep your witness to the relevant issues and not to allow any other matters to be ventilated in Court. Inevitably, the case has some political issues, but we need to keep as close as possible to the Constitutional issues not the political issues. I take it there is nothing further on the televising matter?

MR. N. PERRAM.- Not if we can actually modify all the 12. That we may need formally done.

ACTG. CHIEF JUSTICE.- To remove "live", is it?

MR. N. PERRAM.- Yes.

ACTG. CHIEF JUSTICE.- Yes, all right well we will remove "live". Mr. Perram are we ready to proceed?

MR. N. PERRAM.- I am happy if your Lordships wish me to open in due course.

ACTG. CHIEF JUSTICE.- Yes, you wanted to do a summary of what you have done previously.

MR. N. PERRAM.- Yes.

ACTG. CHIEF JUSTICE.- When I say summary, I am not confining you, but there would be some advantage probably to all parties if we were reminded of the main thrust of the plaintiffs case.

MR. N. PERRAM.- My Lords, in October, 2006, there began to be a dispute on the one hand between the Government of Mr. Qarase, and on the other hand the Republic of Fiji Military Forces under the 1st Defendant. That dispute first appeared in a way, which is best described as involving some sniping between the two gentlemen. 

The issues, which were driving the unhappiness if I may call it that, My Lord, were a few. One of them was the proposal by the Qarase Government to pass a Reconciliation, Tolerance and Unity Bill, which related to amongst other things, the status and future dealings with people involved in the prior coup. The other was the passage of a Bill dealing with the rights of indigenous persons breaches on the Qoliqoli Bill. The Military was insistent for some time that the Government should withdraw those Bills from consideration. The Military's views being that those mattes were extremely divisive and subject to bring Fiji to a state of unhappiness. The manner in which the Military asserted that it was entitled to impose itself on Government in this regard was driven by a view, which the Military had, of relationship between the 1997 Constitution and the 1990 Constitution. And the military had a view that through some mechanism its prior role under the old Constitution was preserved, that it was not just an army or a standing militia, but rather had a role in relation to the ordinary civic affairs of Fiji. 

Therefore, when the military through the first defendant asserted that it was entitled to have the government withdraw these matters he did so on a basis, which included an assertion by it that it had constitutional authority.

My Lords, as is well known, the Constitution provides the mechanism by which such constitutional questions may be resolved, and that mechanism is that they can be referred to the Supreme Court, and the Supreme Court can issue a ruling. 

In October, following calls by the Commodore upon Mr. Qarase that he resign, Mr. Qarase's Government made claim that it proposed to activate those parts of the Constitution which would have permitted the Commodore's asserted right of Constitutional interference, in the affairs of the State to be tested in the Supreme Court, pursuant to the provisions to which I have referred to. Formal steps were taken to cause that issue to go to the Supreme Court. 

In the meantime, other matters took place in November. Some of these matters are disputed. One of them is the apparent arrival in Suva of a container load of live ammunition, which was to be sent to the Military, without a relevant importation licence. An attempt by the police to impound these ammunitions was frustrated when the Military took possession of those ammunition itself. Subsequently, there were words between the Police Commissioner, Australian Mr. Andrew Hughes, and the Commodore as to the relationship between the Police and the Military. 

At the same time, the Great Council of Chiefs began to insert itself in November, into the affairs, which were taking place. Each scheduled hearing to take place at the Tradewinds Hotel, where the Prime Minister and the Commodore would attend and hopefully, between them, the issues, which were confronting all parties, would be resolved. That meeting took place, the Commodore did not attend. Subsequently, further demands were made by the Military in relation to the Police Commissioner who by then had announced that he was investigating the Commodore for sedition, and also in relation to the unlawful conduct alleged to be constituted by the passing of the ammunition into Suva. 

At about this time, the Military served a formal log of claims on the Government, under the hand of Captain Teleni, who will give evidence before Your Lordships. It was euphemistically a letter of requests, and it set out a number of matters which the Military demanded of the Government, chief amongst those were the ones to which I have made reference, namely the cessation of the Qoliqoli Bill and the cessation of the Reconciliation and Unity Bill. The situation looked like it was becoming less stable. 

In Sydney, the Ministers of the South Pacific Forum convened a meeting under the Biketawa Treaty and those ministers then took steps to meet in Sydney to discuss the position, which was happening in Fiji. Subsequently, the Prime Minister of New Zealand, and her Minister for Foreign Affairs, Mr. Winston Peters arranged for a meeting to take place between Mr. Qarase and the Commodore in New Zealand. That meeting took place, and as the nation will recall, Mr. Qarase returned believing he had reached an agreement with the Commodore. The important aspects of the agreement which was alleged to have been reached was in relation to first, the Reconciliation and Unity Bill that it should be examined more closely, and a similar point was made in relation to the Qoliqoli Bill. 

Despite that agreement which was consummated by a letter from the Prime Minister to the Commodore, the Commodore continued in November to make hostile and uncooperative sounds towards the Prime Minister. By the end of November, affectively, his demands in relation to the Qoliqoli and the National Reconciliation Bills had been acceded to by Mr. Qarase. 

There then followed in early December a series of unusual events, which revealed in the affidavits, which have been filed for the Defendants, and the most significant of these affidavits, which has been filed, is the affidavit of the Official Secretary to the President. Exceptionally, My Lords, you will recall that on the last occasion, I explained the events, which had occurred at the President's residence, and objection was taken at the time by our Defendants, in a way some of them, to reference to what had happened at the time, on the basis of Crown immunity. The Defendants now propose not to call the Official Secretary as a witness, so as matters currently stand, My Lords, you will never be told what it is precisely occurred between the Commodore, the Prime Minister and the President on 5th December. That is a matter of considerable significance for reasons to which I will return in a few moments. Because those matters are subject to a claim for rejecting the privilege, I will not now say what they are. They will have to await Your Lordships ruling eventually on whether those matters can conceivably be the subject of crown immunity. We will just however say this My Lord, there is going to be an issue about whether the Coup was lawful, and it is going to be said, as we apprehend it, we do not know because Mr. Pryde has not said yet, that somehow or rather, the Doctrine of Necessity which was explained both by Your Lordship, the Acting Chief Justice and the Court of Appeal in the Prasad Case. Prasad dealt with the Doctrine of Necessity at some length, and the Court which examine it made clear beyond any question, in our respectful submissions that the circumstances, which are said to give rise to the Necessity. Now, in due course, my learned friends will explain to you, how it is that they on the one hand can claim that they were justified because it was necessary for the Commodore to stage a military Coup, but on the other hand, for them to, at the same time to say that the Court is not permitted to examine the matters which are said to make that necessary, in the face of the unanimous and binding decision of this Court, which says that those matters can be examined by the Court. We say that is indicative of the position in the Defendants, which shows a lack of genuine belief in the proposition of whether this Coup was lawful. To put it the other way, if these were different proceedings, we would seek to strike out that claim as being visible. 

MR. N. PERRAM.- They are the matters in relation to what happened on that day. It is of course, notorious that the Commander then took power from the President, dismissed Mr. Qarase as the Prime Minister, and prorogued the Parliament. The Parliament endured four-weeks of military rule until January, the Commander purported to give back the executive power to the President, who then purported to appoint the current Interim Regime. 

My Lords, we see the issues in the case in a very straightforward way. We say, first the proposition that it was necessary in the constitutional sense for the Commodore to seize power on 5th December is not one, which the court will embrace. Nothing remotely approaching Necessity in the Constitutional sense is made out in the facts, which occurred in November. The fact that the Commodore's disagreement with the Qoliqoli or Reconciliation Bills could not, in any universe of discourse amount to constitutional necessity, and the fact that the Commodore chooses not to put before this Court the events which happened at Government House on that day, makes it impossible we say, absolutely impossible, for a claim of Necessity to be made out. It is of course, even more hopeless when you consider that the three people who could throw light on this issue; the Commodore, the Official Secretary and Mr. Qarase, of those three people, Your Lordships and the country are here to hear only one, that is Mr. Qarase. We will not hear the Official Secretary because the Commodore will not permit it, and we will not hear the Commodore. Of course, Your Lordships know from the Prasad Case where the Commodore gave evidence in that case. He was not cross-examined, but he put in affidavits and he explained why in that case he thought to be necessary to do what he had done. That material was not filed in the first instance; it was only filed on appeal, of course. 

No explanation if profit, not even the slightest suggestion or hint as to why the Commodore is not giving evidence to explain why it was necessary to stage a coup. We say, in the absence of the Defendants calling any witnesses to explain what happened or why it is a lawful coup, that the Court would have no option but to throw out this proposition that the coup was lawful is a silly preposition; silly and juvenile and one which ought not to be put in our respectful submission. Now, the consequence of embracing the notion that this coup is illegal, which frankly it obviously was, is this that the Prime Minister was not dismissed from Office. He was not dismissed from office because the Commodore, not having any lawful authority had no power to dismiss him from office. Mr. Qarase has remained at all times the Prime Minister of this country. He was the Prime Minister then, and he is the Prime Minister now. 

Secondly, the Commodore's purported removal or proroguing of the Parliament was likewise completely without legal effect, and the Parliament continues to exist, and the current Constitution continues to exist. 

In light of those matters, we then get to the situations of 5th January. Here, with respect to my learned friends, the Defendants' case becomes more sophisticated and subtle. It is said that when the President received back the powers from the Commodore, let me just in tabulate there whatever does that mean, no powers could validate being taken by a usurping military regime. A better way of expressing what happened is when the Commodore accepted that the coup he had staged had failed, the President reasserted his powers. When the President purported to exercise the power to appoint an Interim Prime Minister, he did so we say in a way, which bears some analysis. First, because there was a Prime Minister who was still existent, that is, because Mr. Qarase was still the Prime Minister, it was not possible under the expressed terms of the Constitution for the President to exercise the power to appoint an Interim Prime Minister. There was a Prime Minister and the Prime Minister was Mr. Qarase. The failure of the coup and the legally unifications aspect of its execution guaranteed that fact. The consequence was that under the Constitution itself, the President had no power to appoint the 1st Defendant as Interim Prime Minister, and that it was contrary to the expressed terms of the Constitution. Now, the Defendants say about that, well there is a reserved power in the President so that notwithstanding, it is not written in the expressed text of the Constitution, nevertheless the President was in power to appoint an Interim Prime Minister. We say the Court would reject that preposition. The existence of those powers is always subject to statutory and constitutional texts. The constitutional texts here made absolutely plain that the President had no other powers. For that reason, the President had no power to appoint the Commodore as an Interim Prime Minister or to appoint any of the other Interim Prime Ministers to their positions. The consequences that is with the current regime, is completely, legally invalid and the former Government remains the current Government. That is, all of the commissions which had been issued by the President to Mr. Qarase and to his Ministers remain valid, and each of the commissions to the Interim Ministers, including the Commodore as Interim Prime Minister are completely without legal effect and are void, and Mr. Qarase asks that this Court vindicate his position as the Prime Minister of the country. It needs to be said that what has happened in the country is a military coup. The army has taken control, and it has put in place an Interim regime, which the terms of the Constitution simply do not address, and simply do not contemplate. 

We have at this stage, an unknown amount of evidence in this case. That is because the Prasad Case leaves open the possibility in the case in which the coup has occurred, that it maybe said that not withstanding, that the coup would otherwise be an unlawful coup that the people have nevertheless accepted it. That of course was put in Prasad and was rejected in Prasad.

The vast bulk of the evidence which has been filed by the Defendants is related to seeking to show one would think the seemingly impossible proposition that this Takeover has been accepted in Fiji. A large number of witnesses are to be called. They include Captain Teleni, who as we understand is currently heading the Police, although, formally second in command of the Military, the former Prime Minister, Mr. Chaudhry and pretty much each of the Interim Ministers, and all these persons are to be paraded before Your Lordship to make good the proposition that the State is working well and that the people have accepted that there has been a regime change.

My Lords, those people would be cross-examined and it will be put to them that in so far as acquiescence is persisted in as our defence, and one should note of course, that it does not appear to be persisted in by the 3rd Defendant at the moment, and the question is whether the other Defendants will persist in it. It will be put to each of those witnesses that that is a silly notion and it has obviously caused a great deal of unhappiness about what has happened in the country. 

In any event as Your Lordships know, when one examines the test of acquiescence in Prasad Case, it is an extremely difficult defence for a regime to make out and Prasad makes it particularly clear. If I might just refer to a part of it, this is what the Court of Appeal said in Prasad about acquiescence; 

"We cannot properly act on a bare statement of belief by the Commander that there is wide spread acceptance by the people. When there was a serious challenge of this claim in the evidence filed for Mr. Prasad. What is required is proof of facts for which the government can infer widespread public support for the interim civilian government an acquiescence in the purported abrogation of the 1997 Constitution. The interim civilian government introduced no such evidence. This evidence came almost exclusively from persons holding official positions". 

You might compare that with the evidence, which is going to be called in this case. Then they went on to say this;

"The Interim Civilian Government face an almost impossible task in demonstrating real acquiescence on the part of the people when the evidence filed on behalf of Mr. Prasad shows the emergency legislation remains in force and is being used to inhibit public expression of dissent. However, it should be noted that the press appears to be free to publish views opposing the interim civilian government"

This is the point which we will seek to make through the Cross-Examination of the Defendants witnesses and through our own witnesses, that dissent is being repressed in this country, that there are emergency regulations in place and that what looks like ordinary civil society does not exist in this country, and that we submit that the Court will find clearly that the defence of acquiescence does not come to being made out. The main question, which we say needs to concern the Court is not just concerned with the validity of the Interim appointments, but is concerned with the legality of the coup itself. In all the statements leading up to the coup the Commander was big on rhetoric about the corruption of the Qarase Government, very big on statements about misconduct by Mr. Qarase and big misconduct by his Ministers. Since the time that this coup happened the regime has been very big on statements of that kind but very, very short on producing any detail about it.

Mr. Qarase in the week before last was charged with an offence in relation to some conduct in 1991. In any ordinary case, my advice to him is not to go in the witness box whilst the criminal trial is pending against him. Despite being exposed to all these, Mr. Qarase is going to go in the witness box in this case and he is going to confront those who say that his regime is corrupt. He will endure the Cross-Examination which he will not doubt be subjected to. Everyone can see that what the Court is not going to see is anyone from the Defendant side, not Captain Teleni, not the Commodore, not the official Secretary, no one is going in the box to be tested about the proposition that this was necessary or lawful. And in our submission that is a very telling matter, My Lord, and it strongly mitigates against any possible conclusion that this coup was lawful. With this, I strongly suggest that the Defendants are not really sincere in seeking to suggest that the 2006 coup was a lawful event. For each of those events, we say the coup would declare Mr. Qarase is still the Prime Minister and the Court would declare correspondingly that the Interim regime is an illegal fiction, a man without feet. That is how we see the case, My Lord. The first witness would be Mr. Qarase, he has been here throughout and he is anxious to go in the witness box. 

ACTG CHIEF JUSTICE .- Thank you Mr. Perram. Mr. Perram, I am afraid, I have another matter at 3.45 p.m.

MR. PERRAM.- There is a procedural question, My Lord. I am sorry, I did not mean to interrupt my Lord.

ACTG. CHIEF JUSTICE.- It does not give us much time to get your witness started. 

MR. N. PERRAM.- I think before I start with my witness, I think Mr. Reynolds wants to try and have some argument about justiciability, which I do not want to have but he does want to have.

ACTG. CHIEF JUSTICE.- Well, this is a matter that we are concerned with. We want to know the issues, we want to get the issues agreed on, we want to know in what order we should be taking anything in this case. That is what we want, we may disagree with counsel, but we would like your views first as to what you think of the issues and in what order we should deal with them. 

MR. N. PERRAM.- Our position is, in the ordinary way of a trial, the evidence should lead and then there should be submissions.

ACTG. CHIEF JUSTICE.- We have already referred to other cases on the justiciability point and we will be inclined, we have not heard your argument on it yet, but we would be inclined to take justiciability first.

MR. N. PERRAM.- Well in fact, we wish to argue that and I wish to be heard against that of course.

ACTG. CHIEF JUSTICE.- All right, we need to hear first on how we are going to go about it. So, can we hear from Mr. Reynolds.

MR. G.O'L. REYNOLDS.- My Lords, I am in a position or would certainly be in a position tomorrow morning, and if necessary now, to deal with this issue of justiciability.

ACTG. CHIEF JUSTICE.- We will not be able to hear you now, but we want to deal with the issues to which is the next matter to come in the trial.

MR. G.O'.L. REYNOLDS.- I am in a position where I can argue that if you would like tomorrow, that is certainly an option. It is a matter, which Your Lordship have an ultimate ruling given in relation to the interlocutory issues. I would like the opportunity of speaking to Mr. McCoy overnight. I expect to have an overview about that and I would certainly be in a position to formally indicate our position at the commencement of the hearing tomorrow, and if necessary to advance arguments about that issue if you would like.

What I respectfully suggest is that given Your Lordship the Chief Justice commitment in five minutes time, that if we can consider our position, that is all the Defendants on that issue overnight and we have informed Mr. Perram of what our stand is tomorrow morning and hopefully, there will be some further refinement of the issues. First of all, between the Plaintiffs and the 3rd Defendant, but also one hopes some reasonable version of the issues between the plaintiffs and the remaining Defendants. If it pleases Your Lordship that is the course I suggest.

ACTG. CHIEF JUSTICE.- Thank you Mr. Reynolds. Mr. Perram?

MR. N. PERRAM.- Well, I believe that is an application that we not now proceed with Mr. Qarase's evidence, but rather tomorrow morning proceed with an application effectively to try preliminary question. That is what I apprehend in substance we are dealing with.

ACTG. CHIEF JUSTICE.- Yes, well we have already indicated that we think it is appropriate to deal with justiciability first as it may affect the evidence.

MR. N. PERRAM.- We wish to be heard, as Your Lordships know there was an application formally to try justiciabilty as a separate question and for this trial.

ACTG. CHIEF JUSTICE.- As a separate trial.

MR. N. PERRAM.- As a separate trial using these dates and the Court rejected that, leaving open the possibility in the interim ruling that some internal trial procedure might be adopted whereby that question was dealt with at this time. We would wish to argue perhaps not right now, we wish to argue that it will be unhelpful in a trial to try and deal with the preliminary issue in that sense. And we want to be heard against that, I am happy to deal with that this afternoon but if my friend wants to do it in the morning or Your Lordships wants to deal with it in the morning then so be it.

ACTG. CHIEF JUSTICE.- I do not rush you on it because you obviously want to expand as to why we should not take it first.

MR. N. PERRAM.- The reasons are very short, that simply one does not know, which justiciability question we are talking about. It could be the alleged justiciability of the alleged 2006 coup. Remembering that even now it is live as an argument that this Court may not investigate the lawfulness sorry the events leading right to the 2006 coup and that the Commodore's actions are not subject to review. That has been put that is one justiciability argument one, which we apprehended, ought not to detain the Court for more than a few moments.

Secondly, the argument that there is something about the 5 January decision, which is not justiciable, but that, made me raise the questions on what is it that is not justiciable. Is it the exercise of the power or is it the existence of the power? How does one know what are the other issues which go to those matters? We say that the Court will be very much immersed in factual matters in looking up what the limits of that power are and we cannot in advance say what the factual issues will be.

That is the point, and the Court refers to the English Court's decision in Mbsogo, I think it was called. That of course was an appellant case it was not a trial it is a Court of Appeals case and it makes immense sense in a Court of Appeal's proceeding to say we will do with one issue because it might get rid of the others. It is totally different with respect, My Lords when you are dealing with the trial. You would need to be effectively trying these issues as a preliminary issue, and unless you had complete confidence in ones' mastery of what the factual matters going to that legal issue were to embark upon a determination of that matter in advance of the evidence would be bound we submit to cause a disaster and not just a disaster for this Court but a disaster to those other reviewing Courts.

ACTG. CHIEF JUSTICE.- Mr. Perram, it is obvious you are going to take more time to decide this, it is not a matter to which counsel agreed. So we will have to hear you fully on which order of submissions we need to hear whether that should precede the evidence or not we will have to hear you tomorrow morning on that I am afraid, otherwise we will not have given you a chance.

We will adjourn now, and resume at 9.30 tomorrow morning.

The Court adjourned at 3.45 p.m. 






IN THE HIGH COURT OF FIJI

Civil Action No. HBC 60 of 2007



LAISENIA QARASE & OTHERS

Vs

JOSAIA VOREQE BAINIMARAMA & OTHERS 



CORAM: ACTG. CHIEF JUSTICE A. H.C.T.GATES
HON. JUSTICE J. E. BYRNE
HON. JUSTICE D. PATHIK


Mr. N. Perram S.C ] for Plaintiffs
Ms. R.A. Pepper
Mr. T. Fa


Dr. G.J.X. McCoy Q.C ] for Defendants
Mr. G.O'L. Reynolds Q.C
Mr. C. T. Pryde - Solicitor General 
Dr. B. Kremer
Mr. S. Kwan



Dr. S. Shameem ] Amicus Curiae
Ms. S. Colavanua







THURSDAY, 6TH MARCH, 2008 - RECORD OF PROCEEDINGS




RECORD OF CIVIL ACTION NO. HBC 60/07 (LAISENIA QARASE & OTHERS VS JOSAIA VOREQE BAINIMARAMA & OTHERS HELD IN THE SUPREME COURT ROOM ON 
THURSDAY, 6TH MARCH, 2008 AT 9.40 A.M.


CORAM : Hon. Acting Chief Justice Justice A.H.C.T. Gates
Hon. Justice J.E. Byrne
Hon. Justice D. Pathik


Mr. N. Perram S.C } For the Plaintiffs
Ms. R.A. Pepper }
Mr. T. Fa }


Dr. G.J.X. McCoy Q.C } For the Defendants
Mr. C. T. Pryde- Solicitor General Mr. G.O'L. Reynolds Q.C 
Dr. B. Kremer }
Mr. S. Kwan }


Dr. S. Shameem } Amicus Curiae
Ms. S. Colavanua } 

------------------------------------------------------------------------------------------------------------

MR. C. PRYDE.- My Lords, there is just one preliminary issue which I would like to address you on next, the matter of an application for temporary admission by Mr. Steven Kwan. I do apologise to the Court for the lateness of this application. I have filed the petition and the affidavit accompanying it in Court this morning and my understanding from my litigation clerk that the papers are before the Chief Registrar. I do not know if you have a copy of the petition but I can certainly hand out my copy to you for you to have a look at. My Lords, as I say, this was filed in the Court this morning. I understand that there is a two-day period within which the Fiji Law Society has the right to object. The affidavit and petition are being served on the Fiji Law Society at the moment and I can inform the Court that I spoke to Mr. Fa, the President of the Fiji Law Society this morning, and I informed him of the situation. He indicated to me that he had no objections to the admission of Mr. Kwan on a temporary basis. But he would confirm it in writing to me. 

The Court does have a discretion to admit Mr. Kwan from the Bench and I would ask the Court to exercise its discretion in this case. Mr. Kwan does fulfill the requirements for a temporary admission. And I would ask that he be duly admitted if it pleases Your Lordships. 

ACTG. CHIEF JUSTICE.- Well, the position is I have to consult or have an advice from the Law Society and I must bear that in mind before making my decision. So, as soon as I have some notification from the Law Society, I will admit Mr. Kwan, unless there is any objection. I cannot formally make the order at the moment, the rules forbid me. But as soon as I hear from the Law Society then I can make my decision. I imagine that if what Mr. Fa has said to you, it is likely that Mr. Kwan will join the defence team this morning.

MR. C. PRYDE.- Yes, thank you. 

ACTG. CHIEF JUSTICE.- Mr. McCoy what is it you...

MR. G. McCOY.- Yes, may I announce that I re-appear slightly belatedly for the 1st, 2nd and 4th Defendants, together with the Solicitor General and one hopes and expects that in due course together with Mr. Steven Kwan. 

My Lords, I arrived in this wonderful jurisdiction only after sundown last night, after having travelled in real terms, some 20 hours to get here. Thus, adopting a rugby clich‚ I am not exactly match fit as we speak, with mind and body currently being slightly separated by the effects of travel. Nevertheless, I understand that my learned friend Mr. Perram has been gallant enough not to take advantage of my absence over the last few days and I am plainly grateful to him and indeed Your Lordships entertained an application for an adjournment, which did proved though to be unsuccessful.

May I tell Your Lordships that the delay was completely beyond my control? I was counsel for another government in the Court of Appeal in Hong Kong. It is a case of great moment. The issue was whether over one quarter of a million search warrants are lawful or not. And the Court of Appeal who part heard the matter, proceed with special urgency and they specially sat on a Monday which allowed me of course, to leave on Tuesday night to come here before Your Lordships. My Lords, I was ethically obliged to stay on in the case. That was completely beyond my control and I am grateful for Your Lordships courtesy and I tender any necessary apology for my absence. 

As a result in the last two days and I hope not because of my absence, it appears that considerable progress as been made. And I am able to continue that theme this morning by indicating to Your Lordships ways for the efficient case management and conduct for this litigation, which will shorten its length. Now my learned friends yesterday placed before the Court a list of agreed issues. I have had an opportunity to see that and it will come as no surprise that in view of the collegiality between Mr. Reynolds Q.C and myself that our independent mind maps as to how the case should proceed substantially overlap. Having considered last night the list of issues currently agreed between the Plaintiffs and the 3rd Defendant, I am able to tell Your Lordships that on behalf of the 1st, 2nd and 4th Defendants, we would agree the list of issues. But, and this is a gentle and minor point, but, in our position question 4, plainly become question 1 with a consequential re-numbering of 1 as 2, 2 as 3 and 3 as 4. 

I say this because whether any evidence is or is not affected by the doctrine of executive privilege must logically be an anterior or preliminary position before one can come to the synthesis required in what is existing questions 1,2 and 3. But apart for that issue of re-numbering, which is cosmetic, current issue 4 in my submission, must precede question 1. 

My Lords, my overview of this case is that whilst your Lordships will plainly be assisted by this list of issues, what will be far more valuable is a refinement and a development of these issues indicating with some specificity the sub- issues which necessarily arise. At the moment, the four issues are at a macro level and this may not of itself be of tremendous assistance to the Court. 

Once the issues are further analyzed and sub-classified, this ought to provide a full analytical framework for the Court to approach the question of its judgment. So whilst the 1st, 2nd and 4th Defendant share with the 3rd Defendant the fact that these issues can be agreed on, I have to inform your Lordship that this morning my learned friend Mr. Perram, at about 8.20 or so, tendered to us some suggested variations to the issues. This would suggest, if he persists with these variations that the original agreed issues are already the subject of discontent, by at least his side. So the progress that the Court properly thought it might have made may have to be re-evaluated, if his suggested changes are to be accommodated. I have to say in the short period of time available I had a look at his suggestions, I suspect your Lordship are not as yet equipped with them, that they do not appeal to me as being a means of assisting the efficient dispatch of this case. It in fact creates a diversionary matters of no moment for this actual litigation. My learned friend can at an appropriate time speak on his suggested amendments.

My Lords, I come with good news in the sense that we say an analytical framework can clearly emerge from this case, because what had always with respect, been haunting this litigation was the spectre of unstructured almost unending evidential sprawl. Having examined the way my learned friend puts the case and the way that we say the case should be addressed, Your Lordships will hear that there is now a massive reduction in the issues. And consequentially a drastic curtailment in the quantum of evidence that needs to be called in this case. And I can responsibly foreshadow, your Lordship will understand, it is only a genuine pre-estimate, that if say, the 1st Plaintiff Mr. Qarase, was to be cross examined tomorrow, his evidence will be completely finished and that of the other Plaintiff tomorrow. It can all be attended to in one day. Because the focus now 
is much crisper, much more confined and one hopes penetrating. That is the Defense position in respect of evidence I understand that my learned friend the Solicitor General yesterday adopted a broad conservatory posture to call a large number of witnesses. Having re-contoured the case, our position is that there is a very strong prima facie likelihood that the Defense evidence, if any, will be very short, very short indeed.

What I am able to say embracing the challenge for efficiency in this litigation, is that there really exists a genuine likelihood that the entire evidence in the case can be dealt with in two days if not less. Now My Lords, in furtherance of that theme, that both parties have prepared what I think is called a tender bundle at least in New South Wales, which is a bundle of agreed documents. I am just told from my right that is not correct.

Your Lordships, will be hearing from my learned friend in due course, he is taking a sedentary posture as he addresses you at the moment. 

My Lords, we have prepared a tender bundle, the Plaintiffs have prepared a tender bundle. The bundle of documents presented to us by the Plaintiffs unfortunately is un-indexed. Putting that presentational difficulty to one side, it principally consists of downloads from the government website and for what its worth, if anything, I understand my learned friend seeks to rely upon aspects of those materials. The probative value of them may prove to be something of an issue. But until I can closely examine the documents to see what jot of evidential value there may be in them for this Court, my current position is there are unlikely to significantly advance the case. My learned friend, may be able to demonstrate his rationale for them, and his rationale maybe, because he was anticipating how the case was to be developed by the Defense, which I would understand. By contrast to the documents found in the Plaintiffs bundle, the Defendants have prepared a tender bundle. I am told not as yet tendered to the Plaintiffs. It consists of extracts from the Government Gazettes, which are plainly admissible as of right and public documents of a simiular nature. 

To expedite the proceedings Your Lordships will need convenience in terms of case management. The documents have been compiled. My learned friend has no objection in principle, pragmatism or otherwise to them once he has had an adequate opportunity to examine them. Then they ought to be placed before the Court as material evidenced in the case and if he needs to introduce his own tender bundle in light of the reshaping of the defense case, then Your Lordships will hear him in due course. 

The core documents are what the Defense say are likely to be of assistance, and the Plaintiff's case presumably will have some equal reflection in the presentation made through its tender bundle. 

My Lords, the way the Defendants had prepared their case was on an expansive and indeed a contingent basis, taking a wide angle in terms of the evidence. The posture to be advanced now is that the Court need only concern itself in terms of question (i) as currently numbered, and the other questions, because they correctly focus on the critical and indeed decisive issues of justiciability. What is the power of the Court in relation to the decision-making? :-which is the issue in this case.

The second aspect, which is complementary, is the issue of discretion. My learned friend threw up understandably a forensic challenge yesterday. I understand, in his newer opening as to whether acquiescence was a live issue. I can tell Your Lordships, the 1st, 2nd and 4th Defendants do not propose to rely upon acquiescence, as explicated by my learned friend. The issue of public acclaim or clamour is not going to be a useful approach in this case. In relation to the concept of Necessity, I can tell Your Lordships that it is an unhelpful distraction to look to that defence, because it will not prove to be relevant to your proper decision-making process. 

The events leading up to the early part of December, 2006 are also in many ways unlikely to be helpful. I say that as a generalization because perhaps some of the precipitating events do have a different relevance. However, generally, it would be an invidious task for this Court to concentrate as to whether what was or was not done in that period, prior to 5th December, 2006, was mandated by law or otherwise. It is unprofitable because it signally fails to examine the true issue in this case, where the Plaintiff is asking to be restored as Prime Minister. The crucial and indeed exclusive focus has to be on the decision-making in January 2007.

Your Lordships, would find it, in my submission a remarkably challenging and perplexing task to have to examine the comparative sincerity of the various protagonists. That cannot be a proper subject for your adjudication. Whether there was moral military or philosophical imperative for what took place in early 2006 is an historical opinion, which does not assist in the resolution of the critical and exclusive question set out in the agreed issue, and if I may read it, it says and I quote:

"Whether the existence and/or exercise by the President of a power to appoint ministers, in the period 5 January to 15 January, is amenable to judicial review..."

If so, how are the events, which occurred in December 2006 relevant to the determination of that issue? Even on the assumption that the events of 2006 are not relevant, the vital issue is the justiciability of the decision-making by the President of this country. He is the State. He embodies the State. Decisions of the President in this regard as exemplified by this litigation are pointing at the very core of the highest form of executive decision-making of the State, and it will be for our learned friends, for the Plaintiff to persuade the Court that there exists within Your Lordships jurisdiction the right to challenge the decisions of the President, and My Lords, it is indeed significant, but wholly understandable, that no allegation of bad faith has been levied against His Excellency the President. So, Your Lordships have, for decision-making your own jurisdiction. Is the Court empowered to review according to law this apex decision of the Head of State, as to whether someone will or will not become Prime Minister of the country? This is the vital issue. 

The evidence in this case to be relevant to Your Lordships determination needs to have a tendency to assist you in relation to this framework. Any attempt to have to sift for competing merit amongst the evidence and affidavits about what took place as possible precipitating factors will, in all likelihood prove to be unprofitable and lead for a grossly extended piece of litigation. 

What Your Lordships need are a set of issues that are neutral, which allow the Court within the sub-issues to understand the competing refinements, and I can tell Your Lordship that my learned friend, Mr. Reynold's Q.C and myself, will assist the Court in a very close examination of these issues, and the relevant authorities, because these are not understandably frequently coming before courts. However, the power of the Head of State, if it can be reviewed poses a jurisprudential dilemma of the highest order, because on what basis is the Court to second-guess the President? 

Your Lordships heard from my learned friend, Mr. Perram yesterday, who suggested that there was no such powers in the President. My Lords, the ultimate reserve power of the President is to preserve the State. That is his sworn duty, and it is an un-reviewable power, in the absence of bad faith. 

Your Lordships may recall that on an earlier aspect of this case, reference was made to a judgment of the High Court of Fiji some years ago, where one of the Judges referred to the famous dictum of Oliver Cromwell, that he would not let the throat of the nation be cut first before he acted, because by waiting the nation had already died. That is the type of Inquiry that my learned friends are seeking to drive you into, to review, to challenge and second-guess the President in this most extreme and exigent situation as he saw it. Whether he was correct or not, whether he was mistaken or otherwise, is simply beside the point in law. The separation of powers between the Court and the executive in our submission does not empower Your Lordships in this extraordinary scenario to review to review. That will be the thrust of our case. We have no need to take advantage of matters like necessity or acquiessence. Whether it was believed that there was a need or not to act as the President did in others is beside the point. The only person whose decision-making is vital is that of the President. Inquiries into the views of others are simply of no consequence to Your Lordships. 

My Lords, with this overview, Your Lordships will see that the scope now for evidence is extremely constrained, and that is why I am able to forecast with a high degree of accuracy. Witnesses answering in the orthodox way ought to be concluded in terms of live evidence tomorrow, if Your Lordships allow the cross examination to start tomorrow. In my submission, what the Court can see is that there has been an ongoing and dynamic process of interaction between the various Counsel for the Defendants and indeed some of that has spilled over to the interaction with the Plaintiffs. And if Your Lordships are looking for an assurance that progress has been made, it can be marked in concrete by the fact that those issues have been set, subject to my learned friend's recent attempt (to yet be made) to vary them. 

Your Lordships have the assurance that after the evidence has been exposed, we will be able to give you a more detailed analytical framework. You will appreciate of course my reluctance to identify in advance of the evidence all the aspects I intend to make use of. That simply would not be good lawyering, but after that evidence is finished and it is not going to take very long Your Lordships will then be equipped with a detailed analytical framework, into which Mr. Reynolds Q.C and myself will integrate propositions to cases of authority, text books and matters of that nature to elucidate the quest for the answer in this unusual task which befalls the Court.

My Lords, as I said sometime ago issue 4 which on my submissions ought to be numbered as issue 1 is the question of executive privilege. Perhaps I can identify in a light and slightly gentel way what that entails. 

In the statement of claim from the Plaintiffs there are pleaded matters which we say are an attempt to subvert the doctrine of executive privilege. A doctrine which is a modern phenomenon of the older crown privilege, namely that what transpires in terms of communication between the Head of State and others may have to be protected in the public interest. Now in the witness statement of Mr. Qarase there are passages, which appear to circumvent or attempt to circumvent aspects of this privilege. One does not want to be unfair to that gentleman because perhaps it was not intended to do that. The Defendants also may have given insufficient attention to this aspect like the Plaintiffs in their original preparation, because the affidavit of a Mr. Nacewa who is the Official Secretary to His Excellency the President, may very well cross the line into aspects of executive privilege. It is fair to say that the line may not always be capable of clear delimitation, but Your Lordships will be anxious no doubt not to allow any inadmissible evidence to be adduced by other parties, conscious of the fact that crown privilege cannot even be waived by either party. 

With this in mind My Lords, it is my respectful submission and I put it forward in a constructive way, that it is actually realistically possible that issue 4 as currently numbered, may fall way if there can be discussions between the parties, particularly if Your Lordships were to direct that to take place. It is quite possible that the evidential approach will allow us all to bypass this issue, which if it becomes significant or prominent will take, I fear, some little time. And I recollect form earlier aspects of this case that our learned friend Dr. Shameem had observations on this issue. I do not necessarily associate myself with what she has said, but I take stock of the fact that she has responsibly raised the matter for our consideration and that of the Court.

My Lords, the choreography of this litigation if your Lordships were to accede to a submission that the parties confer in relation to question 4, is if it is successful as it may very well prove to be, will cause issue 4 to simply drop away there will be no need to re-number issues one, two and three. Subject to the belated attempt by my learned friend to vary the agreement embodied in the issues yesterday the matter can proceed afoot.

Secondly, my learned friend is as yet unencumbered with our tender bundle. It is a slim and official document of about 60 or 70 pages as I say principally extracted from the Gazette. He will perhaps need some little time to examine those documents and it may be that there can be a forensic arrangement that the documents from both parties can be agreed to be admitted. Each party will reserve its formal position on that until it has had an appropriate opportunity to examine them.

If that documentary evidence was agreed and if the issues can be set with 
assurance then after the evidence Your Lordships will be if not enlightened better informed as to how the parties are to advance their case. Once the evidence the old evidence is gone with the genuine pre estimate of 24 hours perhaps 36 at the most then My Lords, we really ought to be able to be in submission mode early next week. I understand that Monday is a public holiday and the additional day will apart from synchronizing circadian rhythms allow us to reduce to writing our propositions and our authority to give Your Lordships a more convenient approach to the case. There may be refinement of the issues but My Lords, the prospect for us being able to complete within the circumference of the current issues is indeed very high. 

My Lords, that is the overview that I ask Your Lordships to consider would Your Lordships be kind enough to now hear my learned friend Mr. Reynolds on behalf of the 3rd Defendant who may not necessarily take a fully identical position. Thank you My Lords.

ACTG. CHIEF JUSTICE.- Thank you Mr. McCoy if I may just ask you. You are really in effect in summary asking for a directive conference on question 4 to decide whether that needs to go ahead or not?

MR G. McCOY.- Yes.

ACTG. CHIEF JUSTICE.- To try to get an agreed tender bundle.

MR. G. McCOY.- Yes, a directed conference again My Lords. The power of the Courts direction has already considerably smoothed the progress of the case.

ACTG. CHIEF JUSTICE.- Well, I am not really sure it has been complied with but anyway may be it has urged people on. Then you propose that we deal with the evidence which you estimate to be short and that we should have submissions early next week no doubt so that the case would be concluded. This is so far as the, I am not sure whether that includes all the closing speeches as well.

MR. G. McCOY.- That is our proposal.

ACTG. CHIEF JUSTICE.- I see so that will all be done in the four days remaining next week.

MR. G. McCOY.- Whether we can conclude in terms of time I cannot obviously tell Your Lordships with any degree of confidence but what I am able to say and this must be a good news is that Your Lordships will have on our position and I suspect my learned friends the fact that we will all be closing submission starting next week. In the early part of next week. The submissions will take a few days but unlikely to be very lengthy we shall be emphasizing as no doubt my learned friend will be a qualitative approach rather then one that simply occupies Your Lordships time. And much of it will be reduced to writing to assist the Court and bundles of authorities will be prepared, I am sure on both sides. 

ACTG. CHIEF JUSTICE.- Yes, well thank you Mr. McCoy we will hear from Mr. Reynolds.

MR. G.O.L. REYNOLDS.- Thank you My Lords. I think from the point of view of the of the 3rd Defendant Mr. McCoy has covered all the issue which I wish to raise and there is nothing further that I need to add to that list.

ACTG. CHIEF JUSTICE.- Yes, Mr. Perram.

MR. N. PERRAM.- There are some housekeeping matters which arise from what my learned friend Mr. McCoy has indicated. First, it will be apparent from what was said and that the Defendants no longer assert that acquiescence is in play. In support of its case on acquiescence the Defendants filed approximately 20 Affidavits and the Plaintiffs in reply have filed approximately 24 Affidavits. Therefore, whilst acquiescence was in play the Court was confronted with the proposition that it would have to hear 44 witnesses on the acquiescence issues. It is of course a good thing that that will not longer be the case.

Acquiescence was an issue in the pleadings because everything was an issue in pleadings until the issues yesterday. Of course it was not an issue on the Plaintiffs statement of claim it was an issue in the Defenses. Yesterday when those issues were agreed with the 3rd Defendants acquiescence disappeared from the 3rd Defendants case and that was a welcome development. Today we hear more welcome news that acquiescence have disappeared from the remaining Defendants cases.

The first thing we would invite Your Lordships to do is to direct that the costs occasioned to the Plaintiffs by reason of the acquiescence case which have now undoubtedly being thrown away be ordered to be paid by the Defendants, as it says in the Doctrine of Necessity, My Lords, Issue 1, which all Defendants now agreed to. The last part is the important part, which says, "If so, arguments which occurred in December 2006 relevant to the determination of, and I interpolate justiciability.

Your Lordship, the Acting Chief Justice yesterday gently probed my learned friend, Mr. Reynolds and myself as to whether they might not be concealed in that issue a series of other issues, and My Lords, you will remember I suggested to you that what was in Order 1 was probably about as good as we were going to get in terms of agreement, and Your Lordship said that you had been encouraged by what had happened in the last two days, and hopefully with some more pushing, perhaps some more fleshing out of Issue 1 could occur. 

That was what I conveyed at 8.20 this morning to my learned friends. It was my proposal as to fleshing out of the events of December, 2006. It was not; as I think it was accidentally submitted by my learned friend that it was an attempt by us to rewrite the issues. It was the tidying up of Your Lordships instruction to us yesterday to see if we could not work out some extra points in relation to what the events of December, 2006 actually means. We put our proposals to the Defendants, but we have not heard back in relation to that. Normally, that sort of matter ought not to bother the Court, that is at the level of practitioners. However, my learned friend said that Necessity was no longer an issue. He also said that the events of December, 2006 did not need to be looked at. Now, there are a couple of complex notions floating in there, and I think the Court needs to get from the Defendants, precisely with what it is that they are saying. If it said that the Doctrine of Necessity no longer applies, how are the Plaintiff's to understand that the Defendants do not contend that the Coup was a lawful one? What we understand that they contend that the fact of the coup is irrelevant, we understand that issue, but is it accepted for the Doctrine of Necessity does not support the events of 5th December? That is an important matter, which needs to be ascertained, and I might resume my seat so that my answer to that could be given. 

ACTG. CHIEF JUSTICE.- Just before you do, Mr. Perram, is it a litigation issue?

MR. N. PERRAM.- What does Your Lordship mean by that?

ACTG. CHIEF JUSTICE.- If it is not being pursued as a defense, is it a litigation issue?

MR. N. PERRAM.- It arises on the pleadings. There is no question about that, and we say it matters for this reason. This might be a slightly long digression, I give pardon for that, but if one looks at section 85 of the Constitution, it reads and I quote:

"This section establishes the office of the President."

It also expressly confers the executive authority of the State on the President. That is the source of the President's powers. 

Also, section 120(2) of the Constitution confers original jurisdiction of this Court in any matter arising under the Constitution or involving its interpretation. The question, which is going to arise, is whether the executive power referred to in section 85 extends to the purported appointment of an interim regime. 

We then need to go back to section 96(2), which says, and I quote:

"The Constitution prescribes the circumstances in which the President may act in his or her own judgement." 

And then in subsection (1) it says, and I quote:

"Subject to subsection (2), in the exercise of his or her powers and executive authority..."

We pause there to say that the executive authority referred to must be the executive authority referred to in section 85. Subsection (1) further says and I quote:

"...the President acts only on the advice of the Cabinet or a Minister or of some other body or authority prescribed by this Constitution for a particular purpose as the body or authority on whose advice the President acts in that case."

Now, what we say follows from section 96 is that, if there was a Prime Minister or Ministers around who were in office and valid, the consequence of the provision was that the President was constrained by section 96, only to act upon the advice of those ministers. If there had been no ministers, say there were all killed by a nuclear weapon that destroyed Suva, and the only person left do deal with he administrative arrangements of the State was the President, then it very well may be for the Doctrine of Necessity to have permitted the appointment of a Prime Minister outside the constitutional structure. However, we say whilst there remained a Prime Minister and ministers and Cabinet, of the kind referred to in section 96, the powers of the President was circumscribed by section 96, and this power could not extend to the appointment of an Interim Prime Minister. 

My learned friend got on the drums and symbols a little earlier about the high power being exercised and how this Court could not second-guess the President, we do not doubt any of that if the power existed, obviously enough it is a kind of power, the exercise of which this Court could not review. There are several examples of un-reviewable powers like that. 

Your Lordships, I give you also an example of the prerogative of mercy thought in some place, not all places, to be un-reviewable, and they would be, the prerogative of appointing a Prime Minister is an un-reviewable prerogative; the various prerogatives over royal fish and royal metals are un-reviewable prerogatives, and other examples as well. However, it has never been the case, that the question of whether a particular power exists is not justiciable. 

The judicial branch has, since the United States Supreme Court's decision in Madison v Marbury, and through a lot of other English cases, always preserve to itself the position of being able to say whether a particular executive power exists. Can I just give Your Lordships....

ACTG. CHIEF JUSTICE.- Mr. Perram, can I interrupt you. Are you wondering whether the defense line was going to be whether there was an existence of reserve powers by virtue of the necessity?

MR. N. PERRAM.- Thank you for interrupting, My Lordship, because I was beginning to float away on the sound of my own voice there. If I could just come back to Issue No. 1 for a moment, Your Lordship will see the reference, are the events, which occurred in December, 2006, relevant to that determination. Your Lordships will see that the issue which we are driving at there is that if the Prime Minister and the Cabinet of Mr. Qarase continue to exist, then the power of the President under section 85 could not extend to the appointment of another Prime Minister. That instantly directs attention to the question of whether Mr. Qarase and his Cabinet remained in Office that is whether they remain respectively Prime Minister and Cabinet Ministers. If they did, we say the power of the President to appoint the Commodore could not arise. That then raises this question, which is the one we apprehended, the Acting Chief Justice made then, tentatively inching towards yesterday which is, does that not mean that the legality of the events of December have to be looked at? If the Commodore was justified by the Doctrine of Necessity in seizing control and dismissing the Prime Minister, then his acts would have been lawfully valid if the Doctrine supports him. If the Doctrine of Necessity did not support his actions in seizing control and removing the Prime Minister, then the Prime Minister and his ministers remain in Office with the consequences I put the argument that the power in the President to appoint an Interim Prime Minister could not arise. 

Just making that absolutely plain where we come from, that we found the acceptance by my learned friend for the other Defendants that the Doctrine of Necessity was not in play in this case, certainly welcome but somewhat surprising because it appeared to us to involve the concession that the removal of the Prime Minister in December, 2006 was an invalid act, which if it has been accepted, we naturally embrace and it will of course save evidence, so there could be no confusion about it. We just wanted to be absolutely clear that that was what was going on. That is the second housekeeping matter, and I am sorry it has taken so long. 

ACTG. CHIEF JUSTICE.- I am not sure it is a housekeeping matter. It is a matter to do with your conference, where you decide amongst yourselves whether it is part of your questions or whether it was just something you thought was something that might be flashed out of question no. 1. Anyway, I take the point that you are making. These all arise out of whether the Necessity is still an issue. 

MR. N. PERRAM.- It is still said that it is not, but I do not bow my learned friend to that because he is, as he says, in a circadian way, his rhythms may be challenged. That is a housekeeping matter. 

The first issue was on costs of acquiescence. The second one is what is comprehended by the abandonment of the Doctrine of Necessities, and the third issue relates to the tendered bundle. In relation to that, there was a direction made by the Court at the conclusion of the festivities last October, and signed by all three Counsel, and Your Lordships will recall and my fiends will recall that a bundle of the Plaintiffs was served at the time, and the Court has a copy of the bundle. The bundle has been in the possession of the Defendants for a very long time. As my learned friend says, it consists of sites downloaded from the Government website, and his large speeches made by the protagonists. It is what, for example, the Commodore said on the occasion of his taking power. 

There was a direction made by Your Lordships at the conclusion of the last round of this litigation in October, Direction No. 10, which says:

"That the Defendants file and serve any new evidence upon which they wish to relay or play, and indicate with the precision in the Memorandum signed by Leading Counsel any evidence formally filed upon which they which they wish to relay on Tuesday, 4th December."

That Order does not embrace naturally enough a tender bundle, but we have not received a tender bundle. From what my learned friend says is contained in his proposed tender bundle. It not only sounds unexceptional, but also sounds like a useless set of documents which Your Lordships probably ought to have in front of us. 

For my part, I am willing to indicate that I do not object to that bundle. I do not require any time to deal with that bundle. I am in my friend's hands. When I say I do not object to his bundle that is on the basis that he does not object to mine. 

ACTG. CHIEF JUSTICE.- Again, Mr. Perram, if I may interrupt, we seem to be drifting to a conference in open court. What I would like you to do, in order that we can get on with this trial, and get to its conclusion is to make sure all the minor issues that still exists, before we can get started are ironed out by Counsel. 

MR. N. PERRAM.- My Lords, I resist taking that course, and I take the unusual course in persisting in seeking to do this through inquiries through Your Lordships. I have tremendous difficulty with my opponents, not personally, but I think they are subject to the weight of the people behind them. I am not able to make contact with them. They do not agree to things, and whenever the Court directs that I agree things with them, I am met with pools of silence and we end up coming back here and being criticized for not having agreed. Now, there are simple things to be done here. Questions can be answered and they should be answered in Court, it will be the fastest way. Is Necessity in play? What are the relevant matters? I do not mind them putting the arguments. They would not even tell me what their arguments are, My Lords, and it is time wasting and it should stop, and Your Lordships are playing into the hands of the Defendants in prolonging these proceedings. The questions which require to be answered and it can be said by the Defendants is, do they say that the Doctrine of Necessity supported the coup in Issue 1? In relation to Issue 2, what is the discretionary matter upon which they rely? They are very simple questions, with very simple answers. They are in their court, they are not in my court. 

MR. G. McCOY.- My Lords, I have to say that my learned friend is taking quite a extraordinary approach to civil litigation. 

MR. N. PERRAM.- I was in the middle of talking, with respect, so you will have your say at the end. 

ACTG. CHIEF JUSTICE.- I thought you were wanting an answer from Mr. McCoy on the question you posed. 

MR. N. PERRAM.- What I was supposing to do was to go through my issues, then he can respond. 

ACTG. CHIEF JUSTICE.- I will let you respond since Mr. McCoy had a fair amount of time with the Court, and then I will see if we cannot resolve, what has to be done next. 

MR. N. PERRAM.- In relation to the question of executive privilege, we agreed with our learned friends that that is the question which is anterior, and will arise in the evidence. However, our position is absolutely clear, and there would not be any resoling from this. The claims for executive privilege cannot be made out, and that will have to be argued before Your Lordships. There is no question about that. 

We see the proposed further conference, proposed endless meetings to discuss further issues.

MR. McCOY.- My Lords, I am afraid my learned friend's definition of housekeeping would change the entire theory of domestic employment. This has got nothing to do with housekeeping. What he has done has made a further opening. He said things which he knows, with respect, ought not to be said. I suspect it is simply the fact that this is being televised and is being taken advantage of. I am concerned that he is playing sound bites. 

My Lords, on the issue of costs, costs are always reserved at the end of the trial. If costs are determined now, there is no incentive in any civil litigation for any counsel to refine the issues, because the moment you refine the issues, you would immediately be potentially exposed to costs. That is why, Courts around the world say costs are dealt with at the end, so that instead of running five issues to the end of the trial and succeeding on one, it is better to take a judgment call and run it on two, but not be penalized at any stage, except perhaps, at the end of the case for it, when the whole context is seen. This is an audacious application and would not be made in New South Wales, where my learned friend hails from, I apprehend.

In respect of necessity, My Lords, I am not going to further humor him with the position. I have said it is not a Prasad situation. I do not need to go to necessity in that sense. 

As to what other aspects we do say are relevant, he will have to await with abated breath the cross examination, to learn it. We have no intention of supplying him in advance with some special list of considerations that we think are important. He will learn them once he hears them in cross examination. I have already said, Your Lordships, this is not likely to take very long.

In terms of the tender bundle, I am obviously glad that he finds the Defendant's bundle unexceptional. I am not prepared to enter into a contract based on some sandpit theory that he will only agree mine, if I agree his. He has given his consent in the open court and I am obliged for that, and I accept that. I will consider whether I find his documents meet the necessary approach in law. If they do, I will inform, Your Lordships, promptly of it. If otherwise, I will tell you why.

In relation to executive privilege, our wish was to say whether the issue could be avoided by some sensible cooperation. If this does not exist and the matter has to be argued, this will, unfortunately, prolong the case, but not by very much, one hopes. Our view was that it was highly likely that the issue could be avoided by some sensible arrangement. I apprehend the Plaintiffs intention is, no I will not tell you what I think, My Lords, at this stage, lest I too fall to the trap of moving into a monologue, as evidenced by my learned friend. That would not be right. 

My Lords, that is all I wish to say. If Your Lordships give directions, I suspect that the authority of the Court is likely to regulate the exuberant views that you heard from the Plaintiffs, and we will be able to make more progress than they are protesting about. 

MR. G.O'L. REYNOLDS.- My Lords, I adopt what Mr. McCoy had just said, but I do just want to add something about one issue raised by Mr. Perram. Whereas I understand it, the Defendants, and I understand it that includes me, were excused in relation to the refinement of issues of raising a wall of silence in not cooperating with the refinement of those issues. We take umbrage of that. You have the floor, Your Lordships, for questions, which involves an enormous telescoping of the issues, which were achieved yesterday, in very lengthy conferences with Mr. Perram and others, and to suggest that he has been presented with a wall of silence in relation to the refinement of issues is false and it is improper of him to have said it. 

ACTG. CHIEF JUSTICE.- The Court will retire for a short while.

The Court adjourned at 11.20 a.m.

The Court resumed at 11.30 a.m.

ACTG. CHIEF JUSTICE.- I think that there has been some progress in this complex case. We note that the improvements have always occurred when counsels have properly conferred. We also understand that they are at difficulties in the fact that, this case has been obviously conducted before the Court by counsels who come from overseas, and therefore, the ability or the chance to have that conference is more difficult. However, we wish to direct that there be a conference immediately after we retire now on the question of Question 4 on the agreed issues, to decide whether that is to stay or to come out of the issue.

Secondly, we want the document now signed up by Mr. McCoy if he is able to sign it. Also, we would like, if at all possible, that there be an agreed tender bundle. Normally, in a civil case, this can be done and I do not see why that cannot be done in this case as well. 

We are ready to hear the evidence at 2.15 p.m. We will allow this little time for these matters to be attended to. However, we just have one word of caution. The Court is anxious when we enter upon evidence, not to be led into a jurisdiction which we do not have and so counsels must be conscious that we not only must not deal with irrelevant matters, but we must not enter upon an inquiry where we have no jurisdiction. It is for the counsels perhaps, to decide whether we hear any submissions on that issue first, but if not, if we are to hear the evidence first, so be it, but the Court is concerned that we do not trespass on a field that another Court may say; "we are incompetent to deal with that issue". So I had hoped that counsel is able to make some progress and we can commence the evidence or whatever else that you have for us at 2.15 p.m.

Are there any other matters? Very well then, we will adjourn.

The Court adjourned at 12.00 p.m.


The Court resumed at 2.35 p.m.

ACTG. CHIEF JUSTICE.- Mr. Perram, if I can just deal with two matters first. In the matter of Mr. Steven Kwan, I am informed that the Law Society is not making any objection to his temporary admission, and so I will therefore admit him as a Temporary Barrister to this Court, and I will waive the requirement of the notice provided in the rules, because of the urgency of appearing in this case.

MR. G. MCCOY.- I am very grateful, My Lords. This being the first-ever admission to the bar that is being televised, I suspect, may he come forward, please, and take his place at the Bar?

ACTG. CHIEF JUSTICE.- Yes. Mr. Kwan can sign the roll later, I think.

MR. G. McCOY.- I am obliged, Your Lordship.

(Mr. Steven Kwan Temporarily Admitted to the Bar)


ACTG. CHIEF JUSTICE.- The other matter concerns the transcripts. We have had a request from the Press as to whether they could have copies of the transcript. There is an insufficiency of transcribers here. We are doing our best, but it is certainly not adequate. We have a copy which is being distributed I think to Counsel, but it has not been corrected for some obvious errors. We will work on corrections this afternoon to try to correct it, and once it is corrected, then we are proposing to give a copy to the Press, unless there is any objection. In the interest of accuracy, we are more likely to get an accurate record if they can see the transcript. 

MR. G. MCCOY.- My Lords, I have no objection to the release of corrected transcripts to the Press - as long as they are corrected. 

MR. N. PERRAM.- Neither do we, and we have not seen the transcript yet. 

ACTG. CHIEF JUSTICE.- Have you had an uncorrected transcript?

MR. N. PERRAM.- No. 

ACTG. CHIEF JUSTICE.- No one has an uncorrected transcript? I am not sure why only one Counsel had a transcript?

JUSTICE J.E. BRYNE.- Dr. Shameem, do you have one?

DR. S. SHAMEEM.- No. 

ACTG. CHIEF JUSTICE.- Mr. Perram, your copy was given to Mr. Q.B. Bale's clerk apparently.

MR. N. PERRAM.- That means we have it, but it has not made its way to Ms. Pepper and I.

ACTG. CHIEF JUSTICE.- That is not perhaps the way it should go, because it is mainly to make sure that Counsel gets it, because it is the Counsel that needs to read it, to know what is going on. I think that change be made; the responsibility is to get it to the Counsel. Perhaps, we could have copies made so that Counsel will leave the Court this afternoon with the copies of the transcript uncorrected.

MR. N. PERRAM.- Subject to correction, we have no objection to that course.

ACTG. CHIEF JUSTICE.- Thank you, Mr. Perram. 

MR. N. PERRAM.- My Lords, I wish to raise to motions regarding what I said before.

First, I should have said at the outset that Mr. Fa is unwell and sends his apologies to the Court. 

Secondly, in the course of the submissions I was making to Your Lordships before lunch, some of the remarks I made may have been taken, and I accept that they were open to be taken as including a suggestion of inappropriate conduct on the part of my learned friends, in particular, Mr. Reynolds. Just before lunch, my learned friend, Mr. Reynolds did indicate his displeasure at the suggestions, which had been made. I accept that my remarks were capable of carrying that meaning and I withdraw the suggestion that there was any form of inappropriate conduct by him, and to the extent I withdraw that, and I apologise to him for any embarrassment that has caused him.

Can I then turn to the question of what took place between my learned friend, Mr. McCoy and myself today? The position is as it happens; it was believed that Mr. Qarase for other reasons would have difficulty giving his evidence tomorrow. We have agreed that his evidence should not happen until Tuesday, and we have also agreed that the issue of Executive Immunity which we can reach no agreement about, say that we agree that there should be an argument about it, and our intention is that that argument can take place this afternoon and tomorrow, and is likely to fill all this place up until the time Mr. Qarase is called in the witness box. 

ACTG. CHIEF JUSTICE.- You have referred to Executive Immunity, is it?

MR. N. PERRAM.- That is the questioned Issue 4, which I think Mr. McCoy wanted to renumber as Issue 1.

ACTG. CHIEF JUSTICE.- Yes, Executive Privilege, is described as the same thing. 

MR. N. PERRAM.- Executive Privilege, yes. Can I just say, in relation to the proposal, which is just been adumbrated, first of all, the discussions, which took place between my learned friend and myself, were very fruitful and they resulted in that outcome. 

Secondly, My Lords, I have been at pains throughout the week to make the complaint for the case; it is not been heard and things are not happening. In relation to this delay, we accept this is entirely proper, this is an argument, which needs to happen, and we make absolutely no complaint about Mr. Qarase not going in the witness box until Tuesday. We make absolutely no complaint about this argument now happening. It seems to us it is a highly proper and appropriate and useful of course. This is a matter we cannot agree about, this debate has to be had, and it is mostly usefully heard before the evidence.

There are other matters, which are passed between us, which do not need to trouble you with, My Lords. It is safe to say that I have found the discussions I have with my learned friend to be very encouraging in terms of the likely disposition of the proceedings.

JUSTICE BRYNE.- From what you have just said, do I take it that you and Mr. McCoy are not at one on ground 4?

MR. N. PERRAM.- No. We all agree that Issue 4 is an issue, and I have not spoken to Mr. Reynolds, but I am pretty sure his position is the same as Mr. McCoy's. We all agree that we cannot agree what the answer to Issue 4 is, and we all that the Court should, this afternoon and tomorrow work out what the answer to question 4 is. 

JUSTICE J .E. BRYNE.- So, it is still an issue?

MR. N. PERRAM.- It is an issue, and we all agree it is an issue. I do not think there is anything I can usefully add. 

ACTNG CHIEF JUSTICE.- So, essentially we have agreed issues now signed by all three Counsel, representing all of the Defendants and the Plaintiff as you drafted before? Perhaps with the introduction of the word 2007, when we were talking about the January time, line 2 on question 1. That is the only alteration. 

MR. N. PERRAM.- That is from our perspective. 

ACTG. CHIEF JUSTICE.- Well, I am very glad.

MR. G. McCOY.- I am very grateful to my learned friend for his honourable, indeed fragrant words of conciliation.

ACTG. CHIEF JUSTICE.- I take it that you also feel that it is fragrant.

MR. G.O'L. REYNOLDS.- I too am grateful, and accept the apology without any reservation. 

ACTG. CHIEF JUSTICE.- If I may just ask that Counsel confirm with the clerk exactly what the correct initials are after your names. We seem to be in a slight confusion over that, and we would like to get it right if possible. 

MR. G.O' L. REYNOLDS.- It is convenient My Lords, and I have been delegated the task of opening the batting on the issue of Executive Privilege or it is sometimes called Public Interest Immunity. It may be convenient if I begin by taking Your Lordships to a Notice of Motion dated, 12th November 2007, filed on behalf of the 3rd Defendant. The second paragraph, which is on the final page is the relevant one, and in that paragraph, we seek an order that certain paragraphs of the Statement of Claim dated 15 October, 2007 be struck out on the basis that those matters are subject to executive privilege. 

Before I come to that issue, there is a preliminary matter, which I need to raise, and it is this. One of the issues that can arise in relation to executive privilege is that if the level of material is publicly divulged, then that may mean that as part of the balancing exercise that the Court conducts, that that is a powerful reason why the privilege or immunity can no longer be claimed. Now, there are a number of ways that Your Lordships could deal with the issue, can I suggest a modus operandi which might enable me to address argument to you, at least this afternoon. I do not propose, with respect for Your Lordships make an order in closing the Court, what I do suggest is that, given that I am only going to refer to these various paragraphs by number, and then invite Your Lordships to look at the contents of those paragraphs, that we can therefore have full televising of the argument, that I would, with very great respect remind Your Lordships that that is a self-imposed stricture on my part, and that necessarily the effect of that stricture would be undermined if Your Lordships, for example, were to refer to the contents of these various paragraphs. With Your Lordships leave and indeed blessing that is the way I was proposing to proceed if that is convenient to the Court.

ACTG. CHIEF JUSTICE.- Mr. Reynolds, you might even have to be preemptory with us, if we appear to be falling into error. 

MR. G.O'L. REYNOLDS.- I should try not to cause, My Lords. If Your Lordships have the copy bundle of pleadings which Your Lordship, Justice Pathik directed to be bound up yesterday, and which have been compiled by my learned friend, Mr. Perram's Instructing Solicitor, Mr. Fa, behind the first tab of that document is the Statement of Claim, and if Your Lordships have perhaps in one hand the final page, that is page 3 of our Notice of Motion, Your Lordships will, if we can just go perhaps to a few of these paragraphs, to paragraph 13, you will see the flavour of the events that are referred to there.

On page two paragraph 14 and paragraph 63 I will not bother to go through all of this but just to give you some feeling for the sorts of issue that were raised approximately paragraph 63 through to 70 under the heading; The Events of Friday One December, 2006. 

Your Lordships will see the flavour of the events that are referred to there likewise under the heading events of Saturday 2 December it should read 2006 paragraph 73 to 75 also disclose the nature of the subject communications. Paragraphs 77 through to 80 involves a different day but again communications of a similar nature and again at a very high level of government. Likewise paragraphs 82 to 85 fall into a similar category, likewise paragraphs 89 to 90 and from 94 following and I would ask Your Lordships particularly to look at paragraphs 95 through to 103. 

There are various other paragraphs mentioned in our notice of motion but I do not think it is necessary for the purposes of this argument to ask Your Lordships to review them right now. Most of these communications are very similar to the use of analogy from the United Kingdom to meetings between the Queen and her Prime Minister which as I understand occur regularly from time to time which the highest matters of State are discussed between the sovereign and her Prime Minister. Situations at times in the Republic of Fiji is not identical but I submit is not really relevant in principle I withdraw that different in principal; from the situation that I have referred to in the United Kingdom. That is not to say that some of these discussions do not involve matters that are a little wider in the examples that I have given but we submit that they are covered by the same principle.

Now what I was proposing to do is to take Your Lordships initially to the leading case in this area although that may implicitly involve a rather biased decision on the part of an Australian. It is a decision of the High Court of Australia on a case called Sankey and Whitlam which is in 1978 volume 142 of the Commonwealth Law Reports at page one. And I have full copies of that decision for Your Lordships. This was a case, which was quite a cause celebre In its day relevantly Your Lordships will see from the head at paragraph two at the bottom of the first page that it concerned access to Cabinet documents and papers concerned with policy decisions at a high level and it was held at this documents were entitled to protection from disclosure irrespective of their contents. And although that protection maybe asserted by any party and we underline these words or the court itself it is not absolute or permanent. 

My learned friend Mr. McCoy referred before the luncheon adjournment for the proposition that it is not possible for a party to waive executive privilege the words in the head note or the Court itself underline the key propostion that is involved namely that it is fundamentally a matter for the Court to determine if necessary of its own motion whether or not material information is covered by executive privilege or as it is perhaps more commonly known now public interest immunity. 

In the head note it is also noted that production will usually be order of a document has been published by tabling in Parliament or otherwise where it seizes to be necessary to preserve the secrecy of its contents and the usual reasons for according protection to Cabinet documents and similar papers. Have less force when disclosure is essential to a prosecution or a criminal offence. Just pausing there it will be our submission in due course that the material were subject of the claim for executive privilege in his case if anything is material and operating at a high level of government a higher level of state even than Cabinet documents.

Your Lordships will see in due course that the "similar papers" referred to in the head note also include materials from the Commonwealth executive council which of course included the Governor General in Australia. We will be submitting in due course that if anything the materials in disclosed in the present quotes are for the order of the situation obtained in Sankey and Whitlam.

The judgments begin at paragraph 16 and I will be suggesting in due course that the leading statement of principle that will be found in the judgement of the Acting Chief Justice Sir Harry Gibbs. I am not proposing to of course to read the whole of this very lengthy judgement but I would respectfully direct Your Lordships attention to certain key portions of the judgement of the Acting Chief Justice. And I suggest that Your Lordships start at page 32 of the judgement where from the bottom of page 32 through to page 34 your Lordship will get a feel for the particular document, which will involve in this particular case it will moot more than a modicum of similarity between the materials in Sankey and Whitlam and the materials in the present case. 

Now Sir, Harry Gibbs refers to this document as falling into six categories. The phrases at the bottom of page 32 refers to an explanatory memorandum and schedule relating to a meeting of the executive council and you will see that he talks about at the top of page 33 the preparation of the minute paper which sets out the advice tendered to his Excellency the Governor General in Council being signed by the Minister concerned. And each minute is accompanied by an explanatory memorandum which usually sets out the reason for the advise or minutes to be submitted to the executive council listed on a schedule which is signed by those present at the meeting. He then goes on to refer what happens if the Governor General for some reason is not present at the meeting. Now, of this six categories that is probably the one which is closest to the sorts of issues which Your Lordships are concerned with in this particular case. Now you will see the other categories of materials.

In paragraphs 2, 3, 4 and in the middle of page 34, paragraph 5 is again a minute paper for a meeting of the Executive Council, with the explanatory memorandum, and schedule that too is important. In paragraph 6 is reference to a number of other documents. Now, just pause in there, Your Lordships will probably have observed that documents in categories 2, 3, 4 and 6, in this case are obviously material relating to matters of State, but are at a considerably lower level than the sort of matters of State referred to in paragraphs 1 and 5, or for that matter, as involved in this particular case. 

Now, there is an argument about parliamentary privilege which Sir Harry discussed from pages 35 through to the top of page 38, and pages 38 following, there is a very extensive discussion relevantly through to about page 44 of the relevant principles. Although I am focusing to some extent on the similarity of the material, in this case to the material in the present, I would also rely upon this decision for its discussion of matters of principle. 

I am not going to read the whole of pages 38 through to the middle of page 44, although I respectfully invite Your Lordships, in due course to review those pages, but can I perhaps highlight a few aspects of what Sir Harry had to say about these issues. At the bottom of page 38, Sir Harry notes that it is the duty of the Court and not the privilege of the executive Government to decide whether a document will be produced or may be withheld, that it is a matter for the Court to decide which aspect of the public interest predominates, or in other words, whether the public interest which requires that the document should not be produced, otherwise the public interest that a Court of Justice in performing its functions should not be denied access to relevant evidence. For our part, we are content to adopt that as a correct statement of principle, that notwithstanding the peculiarly sensitive nature of the communication as the subject to the client in this case, we conceive that ultimately, it is still the duty of this Court to engage in that weighing exercise as it is sometimes described; weighing up the public interest in the non-production of material relating to matters of high state, as against the importance of having that material before the Court, in this particular case. 

Having made that concession, I do nonetheless submit that matters of the kind that we are talking about in this case are a paradigm example of a very high degree of public interest in non-disclosure, and whilst I have conceded that ultimately it is a matter for the Court to decide upon a weighing exercise, I submit that given the peculiar character of the material in disclosures in this case that, put it pneumatically, Your Lordships will not have very much difficulty at all in coming to a decision on that weighing exercise. 

At page 39, about a third way down the page, there is reference made to an important distinction, Your Lordships will recall in this area, and that is, between on the one-hand, what is sometimes called a "Class-client", Your Lordships will see the word, "Class" appearing in the third line of the first four paragraph of page 39, and two lines further on, there is reference to the contents of the particular document. I should make this clear that in this particular claim, there is both, a Class claim which I will refer to as relating to matters of high state, and also if necessary, a Contents claim in relation to each particular communication. Class claims are very often made, and Your Lordships will recall in relation to cabinet minutes where they are the subjects of a subpoena, and we make a similar class claim in this case also. 

Can I draw Your Lordships attention to serve another aspects of this judgement. Further down of page 39, there is reference to a cabinet documents and minutes of discussions between Heads of Departments. Papers brought into existence for the purpose of preparing a submission to Cabinet, and then there are references to cases relating to those various related categories. And then there is importantly a reference to any documents, which relate to the framing of Government policy at a high level, and there is reference to the decision in Re Grosvenor Hotel, London, No. 2. 

Sir Harry then makes reference to a statement of Lord Reeds in Conway & Rimmer, that that particular class would extend all documents concerned with policy making within Departments, including it may be minutes and the like by quite junior officials and correspondence with outside bodies. Now, pausing there, we are not dealing here of course with anything like, "quite junior officials" and for the most part of course, not dealing with anything relating to correspondence with outside bodies. So, the present case, we submit, is much closer to the core of this sort of privilege, then the sorts of things that Sir Harry is referring to at the bottom of page 39 of his judgement. 

Sir Harry goes on to say, this is on page 40, on the paragraph beginning, "One reason...." that one reason that is traditionally given for the protection of documents of this class is that proper decisions can be made at high levels of Government, only if there is complete freedom and stating facts, tending evidence and exchanging views and opinions, and the possibility that documents might ultimately be published, it might affect the frankness and candid of those preparing them. 

Some judges now regard this reason as unconvincing, but I do not think that altogether that in some matters at least, communications between ministers and service of the crown may be more frank and candid if those concerned believe that they are protected from disclosure, and he goes on to discuss that issue further. Just pausing there, we submit self-evidently obvious that justice, it is important for there to be, to use Harry's words, "frankness and candid", in discussions between Her Majesty's Prime Minister and the Sovereign, so to communications in the Republic of Fiji, between the President and the Prime Minister of Fiji. 

It would also likely to be more fruitful, productive and in the interest of the nation, if they can be engaged in with frankness and candid, and without having to be concerned whether the details of that discussion will be divulged by one or the other of them, and may I add that that rationale and preposition will also extend to communications between officials within Government House, and officials within the Prime Minister's Department, because obviously there does need to be communications at a slightly lower level in order to facilitate communications between the Prime Minister and the President. 

In the middle of page 40, Sir Harry refers to another reason, suggested by Lord Reed in Conway & Rimmer, and Lord Reed said in that decision, "The most important reason is that such disclosure would create or fan ill-formed or captures public or political criticism." The business of Government is difficult enough as it is, and no Government could contemplate with equanimity the inner workings of the Government machine being exposed to the guys of those ready to criticize, without adequate knowledge of the background and perhaps with some axe to grind. 

Sir Harry says, further down the page that it is inherent in the nature of things that Government, or no ...

No Minister or senior public servant could effectively discharge the responsibility of his office if every document prepared to enable policies to be formulated was liable to be made public. I interpolate that, that proposition is all the more humane to the situation pertaining between in respect of discussions between the Prime Minister and the President. So how he goes on to say that the public interest which is what Your Lordships are looking at in one part of the weighing exercise therefore requires that some protection be afforded by the laws to documents of that kind. It does not follow that all such documents should be absolutely protected from disclosure irrespective of the subject matter with which they deal with.

Although, it is sometimes categorically stated that documents of this class will not be ordered to be disclosed at least if proper objection is taken. It has been acknowledged in some authorities that the protection which this class enjoys is not absolute. Just pausing there although on proper matters of higher state I have accepted the protection accorded to disclosures in that class is not absolute. I do nonetheless submit that it is nigh on absolute, given the very high public interest in non-disclosure of material of that kind.

So, it goes on and refer to the recognition by Lord Reed in Conway& Rimmer of as I recall only one exception and that is the Cabinet minutes and the lie can be disclosed when they become only on historical interest. That is perhaps a judicial recognition of what is sometimes called the 30 year roll which is applied in some jurisdictions relating to Cabinet papers.

Further down on page 41 Sir. Harry says this is about point 8 that although the statement of Cabinet documents and other papers concerned with policy decisions at a higher level, which he calls State Papers, are immune from disclosure was repeated in Conway & Rimmer. It accords yield with the principles affirmed in that case, the fundamental principle that the documents maybe withheld from disclosure only if and to the extent that the public interest renders it necessary. That principle in my opinion must also apply to state papers. It is impossible to accept that the public interest requires that all state papers should be kept secret for ever/or until they are only of historical interest.

Just pausing there Your Lordships will have seen that the view that was taken in Conway & Rimmer as I recall by Lord Reed and others of their Lordships was that Cabinet documents and other documents concerned with policy decisions at a higher level or state papers are immune from disclosure. That underscore that proposition I tried to make earlier that even though Your Lordships are engaged in this weighing exercise that the scales which tilt against disclosure in the public interest are we submit filled to the brim with heavy material which must be weighed down by the need for disclosure in the particular case. 

We submit that it would be extremely rare for the public interest in disclosure in this particular case to outweigh the particular public interest with which Your Lordships are concerned in this particular case. Now, Sir Harry refers at page 42 to other documents involving as he calls them state papers he talks it about 10 lines down about documents relating to national security pausing there we submit is not live in here and these papers do not form a cosmogonist class. He refers further down the page at about page seven to the fact that members of the executive council are required to take a binding oath of secrecy. He says however, that, that does not assist the argument that the production of state papers cannot be compelled and the state papers are not protected from disclosure because they are confidential or because the Minister has taken an oath not to revamp the question is whether the disclosure of the documents would be contrary to the public interest.

Confidentiality is not a separate head of privilege but maybe a material consideration to bear in mind when privilege is claimed on the ground of public interest and that of course is the reason that I raised the issue I raised with your Lordship at the commencement of the argument. He goes on to indicate his conclusions in paragraph 43 and I will not read out the whole of the four paragraphs on that page because it is really just a dilation of the general principle which Sir Harry articulate but I took your Lordships to earlier in the judgement.

If I can move on and I move a little more quickly if I may now because I submit that Sir Harry's judgment covers most of the principles that are relevant to this particular question. His concession in relation to particular documents are to be found in pages 46 through to 48 and perhaps Your Lordships can look at those conclusions in due course. I do not propose to take you to the details of Sir Harry's reasoning on that point.

The rest of the judgement I can move through a deal more quickly. The judgement of Sir Ninian Stephen commences at page 48 and there is a fairly lengthy introduction to the particular issues involved in this particular case. I highlight I hope briefly just certain aspects of this particular judgement, page 56 Sir Ninian talks about factors in the balancing of process and about point 8 on that page he refers to the needs to safeguard the proper functioning of the executive arm of government and of the public service. Although he says that it is perhaps inappropriate in relation to seeking the documents to prevent successful prosecution of a charge an issue that is not an issue in this particular case. He refers to page 57 in about point 3 to the proposition referred to in Conway & Rimmer that in the past it has been usual to speak of Cabinet minutes and the like as unquestioningly entitled a crown privilege. Again, Your Lordships know what I have to say about that namely that's where one is talking about matters at the very highest level of State even higher than the level of Cabinet minutes that although the balancing exercise does nonetheless exist it is a very difficult exercise for my learned friend Mr. Perram to establish that balancing exercise should be exercised in his clients favour. That is a good statement of that proposition is to be found at the bottom of page 58 where Sir Ninian refers this is about five lines from the bottom to affairs of government at the highest level I underline those words. And he said that in the case of the affairs of government of the highest level it will often appears readily enough that the balance of public interest is against disclosure. 

We submit that Your Lordships will form the view readily enough to balance the public interest against disclosure here. Now there is some more general observations made by Sir Ninian but I will not take Your Lordships to. We will take you again briefly to the judgement of Sir. Anthony Mason which commences at page 81 and again only a small portion to matters referred to by Sir Anthony Mason. In page 94 of the judgement he again sets out the seven categories that are the issue in that particular case. Page 95 about halfway down the page he refers to the argument of non disclosure of the documents is necessary for the proper functioning of the executive government and the proper functioning of the public service and that he said that the disclosure would inhibit complete candour in discussion. He said in relation to one category of documents it is not contended that the disclosure of information contained in the documents would itself be prejudicial to the national interest. Importantly, Sir Anthony says that it has generally been assumed that important state documents or I interpolate or communications relating to high level policy decisions in particular Cabinet decisions and Cabinet papers are immune from production. However, Sir Anthony like Sir Harry Gibbs recognized that at the foot of page 95 that in considering an objection to production on the ground of crown privilege the Court must evaluate the respective public interest and determine whether on balance the public interest which calls for non disclosure outweighs the public interest in the administration of justice that requires the parties be given a fair trial on all the relevant and material evidence. 

Again, Sir. Anthony comes to the same view that documents relating to matters of high state are not ipso facto immune from production the Court must still conduct that balancing exercise perhaps in contrary distinction to the views of Lord Reid in Conway & Rimmer. Now just pausing there I have made some concessions in relation to the balancing exercise. It may be I do not know but it may be my learned friend Mr. McCoy may take a more stringent view on this issue. I have had the time to discuss it with him the line of authority in the United Kingdom, which is perhaps more stringent in favour of non-disclosure, a line stemming from Conway & Rimmer. I should have candidly told Your Lordships that I have not had the opportunity fully to review the jurisprudence in this particular jurisdiction on this issue, and that is something which we shall try to attend to overnight. However, dealing with the matter as a matter of principle, I submit that there is much in these judgments, which would influence Your Lordships in formulating a principle, which could be applied to the matters of high-state relevance in this particular case. 

Sir Anthony refers, at page 97 to Lord Reids speech in Conway & Rimmer, and discusses it, and he refers, at the bottom of page 97 to the fact that Cabinet proceedings have always been regarded as secret and co