Does the High Court have the powers to determine whether the President was right or wrong in appointing the interim cabinet?
This is the main legal argument of the counsel for Commodore Bainimarama and others, QC Gerard McCoy.
While making his opening submission in the case to determine the legality or otherwise of the event of December 5th, 2006 and the appointment of the interim government, McCoy said the vital issue of the whole case is the Justifiability of the decision making process followed by the President Ratu Josefa Iloilo in appointing the Interim Prime Minister and his cabinet.
He said the President is the state, he embodies the state and that his decision exemplifies the executive decision making of the state.
QC McCoy argues that this is the basis of their argument and once the defence proves this, everything else is deemed irrelevant.
The state lawyer said the President has executive powers to make decisions, which includes him having reserved powers. Based on this, McCoy questions whether the High Court can rule on the decisions made by the President.
Legal counsel of the ousted SDL members, QC Nye Perram replied they have to look at the doctrine of necessity, how it was used, the lead up to December 5th 2006 and January 5th 2007 when the Interim Government was appointed, adding all facts need to be looked at, not just on whether the President's powers can be questioned.
High Court Judge Justice Anthony Gates then adjourned the case to 2.15 this afternoon adding the Judges wish to direct that all counsels have a conference on the list of issues needed to be discussed.
Justice Gates said the panel of judges would like to see there has been an agreed tender of arguments and that when the case resumes this afternoon the Judges would be ready to hear evidence.
Justice Gates also added a word of caution, stating that the counsels do not enter into jurisdictions which the court does not have.
Yesterday, the lawyer for Qarase and other ousted SDL members, Nye Perram questioned the legality of the President's powers in appointing the Interim Prime Minister and his cabinet.
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